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Changes sought in Iowa’s grandparent rights laws

December 21, 2009

DES MOINES - Dianne and Dale Schwerin feel as if they almost have to sneak around to see two of their grandchildren. Dianne once made the six-hour round-trip drive from Minnesota to Parkersburg just to eat school lunch with one of the boys.

Almost four years after the death of the Schwerins' 30-year-old daughter, Amy Guldager, a popular Parkersburg teacher, their son-in-law has cut off contact with them.

Some family-law attorneys are calling for changes in Iowa law to make it easier for a court to grant grandparents face time - especially if one parent is dead.

Judy O'Donohoe, the Schwerins' Charles City attorney, is among those who believe state lawmakers can better balance children's needs for their grandparents and a parent's right to determine with whom their children associate and not run afoul of state and federal court decisions.

Current Iowa law is so strict it's almost impossible to get visitation, several lawyers said. Grandparents and great-grandparents have the right to ask the court for visits, but they have no shot at winning unless they can prove the custodial parent is ''unfit'' to make decisions about whom the child sees.

Court rulings don't require such a strict state law, advocates for change say.

''Don't say you have to do that because the U.S. Supreme Court said you did,'' said Richard Victor, a Michigan lawyer and founder of the nonprofit Grandparents Rights Organization.

Other states, including Ohio, are more permissive when it comes to a child's legal relationship with grandparents after a divorce or death.

''I think a case is a bit more compelling when a mother or father is predeceased,'' O'Donohoe said. ''You're talking about cutting the kids off from half of their whole heredity.''

Neither the Iowa Department on Aging nor the Iowa branch of AARP, a lobbying group for Americans 50 and older, tracks statistics on Iowa grandparents who are struggling with visitation. Iowa Legal Aid logged 15 calls about the problem in the last 12 months.

The Schwerins, who live in Aitkin, Minn., say they have seen their grandsons, now ages 5 and 7, five times in the last year. On four occasions, that was only because the grandparents showed up uninvited at public events where they knew the boys would be.

For the past four months, the Schwerins' phone calls, e-mails and text messages have gone unreturned.

''It feels like a hopeless situation,'' said Dianne Schwerin, a 38-year registered nurse. ''All we've ever really wanted is for all this back-and-forth nonsense that's gone on to stop. It has so little to do with the boys and everything to do with the grown-ups, and they're getting lost in here.''

Schwerin said losing the boys has worsened their grief for Amy. A teacher at Aplington-Parkersburg High School, Guldager collapsed from a heart attack at age 30 as she walked out of the school with her two toddler sons in January 2006.

''We can't change the fact she's not here,'' Schwerin said, ''but we'd like to remain a positive influence in the boys' life, and they're really our sole connection to her on this Earth.''

David Guldager has a new woman in his life who has children of her own, his mother-in-law said. ''We don't discredit him - we know he's moving on,'' Dianne Schwerin said.

The Schwerins said they're not sure why he cut off all ties.

''All he ever talks about is we should respect his wishes. That's about all I get out of him,'' said Dale Schwerin, who lived in Iowa 47 years and unsuccessfully ran for state representative in 1984.

Guldager, in a telephone interview, said: ''That should stay between me and them. Whether they agree with me or not - no, I'm not going to comment. To me, that's a personal issue.''

The Schwerins said they respect Guldager, so they're reluctant to go forward legally. They also worry a legal battle would cause total alienation.

O'Donohoe said: ''Right now, you're living with whatever little crumb the living parent is willing to give you. If you throw down the gauntlet and go into battle over it and lose, it's more or less a guarantee that you're not even going to get a crumb. It's an all-or-nothing proposition, and that's a really big risk.''

Waverly lawyer Gary Boveia said the courts haven't defined what ''unfit'' means, but the threshold is considered high.

''You almost have to establish they have acted in such a manner that they needed to be reported to (child abuse investigators) for being negligent in their care of the children,'' he said.

Boveia agrees with Victor and O'Donohoe that Iowa law is more extreme than the courts require.

In 2000, the U.S. Supreme Court ruled that a Washington state law was unconstitutional because it permitted ''any person'' to petition for visitation rights ''at any time'' if it was in the child's best interest.

Since then, confusion over what's constitutional has led to widely different visitation laws from state to state.

The ruling provided ''fertile ground for diverse and contradictory opinions,'' according to an analysis in the January issue of the Duke Journal of Gender Law and Policy.

A common interpretation of the court ruling is that a judge must presume ''fit parents'' act in the best interests of their children, so there's normally no reason for the state to inject itself into the private realm of the family.

Victor, of the grandparents' rights group, believes the U.S. Supreme Court never intended state laws to be that strict.

In Ohio, grandparents can seek visitation following divorce, death or the birth of a child out of wedlock. They can't seek visitation if a family is intact. The burden is on the grandparents to prove visitation is in the child's best interest based on factors listed by Ohio lawmakers. And the courts must give deference to the reason the parent says he or she doesn't want the visitation.

With the Ohio law, ''there's no 'clear and convincing evidence' factor, there's no 'harm' factor, there's no test of 'fitness,' '' Victor said. ''It's a child-oriented law.''

In 2003, the Iowa Supreme Court held that the state's grandparents' visitation law was unconstitutional. The decision criticized the statute for failing to include a factor that gives more deference to a parent's decision, O'Donohoe said.

In 2007, state lawmakers adopted a new law that says grandparents can win visitation rights only if they can prove the custodial parent is ''unfit'' to make decisions about visitation.

In 2008, state Sen. Keith Kreiman, D-Bloomfield, proposed erasing the ''unfit'' requirement. The measure failed, partly because lawmakers worried that adjusting the law would clash with court rulings and partly because they didn't want to interfere with parents' rights, he said.

''In my mind, it's not grandparents' rights or parents' rights. It all boils down to what's best for the kid,'' Kreiman said.

In August, the Schwerins asked their son-in-law if the boys could spend a day with them at a water park and with Dianne's family. Guldager agreed. The grandparents helped the boys make stepping stones for their Minnesota garden decorated with mementos from their mother, and celebrated everyone's birthday that day.

''David e-mailed saying they couldn't stop talking about all the fun they'd had,'' Dianne Schwerin said. ''We said the same thing, and thought, 'Wow, that's a turnaround.' ''

That was the last time they heard from him.

The Schwerins hope lawmakers will take action this session, which begins Jan. 11.

''We're really going to toot the horn in Amy's name and get out there, and I think that's giving her a legacy,'' the grandmother said. ''It's not just our family alone. We know there are so many others that struggle.''



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