Leake v. Grissom

¶1dissenting:

¶2Resting its decision on what I consider to be unacceptably narrow construction of the legislative language,1 the court rejects today — as nonactionable — the claim by paternal grandparents to the companionship of their underage offspring now in the custody of the natural mother and her new husband who is the adoptive father. The court’s pronouncement gives continued effect to prior case law which refuses to extend recognition in equity to any grandparental quest for access — however slight or limited.2 I cannot join in the court’s opinion because:

¶31) The grandchildren in this case still retain the very same rights to inherit from *1111the grandparents as they had before the adoption took place by the mother’s present husband.3

¶42) As relatives in the third degree the grandparents have general statutory standing to litigate with the parents any controversy over the welfare of the underage offspring. They may file a suit to protect that offspring from abuse of parental authority.4 The new husband’s adoption of these children did not alter the grandparents’ status in this regard.

¶53) The grandparents have special statutory standing to assert a claim for access to the offspring under the provisions of 10 O.S.Supp.1975 § 5 and 10 O.S.Supp.1978 § 60.16(3). Those statutes should be construed together in light of the objective doubtless intended by the legislature. Grandparents were to be allowed access to court for adjudication of visitation claims when their offspring is an orphan or if its natural parents are divorced. The post-decree adoption was not intended as a barrier so long as the child remained with at least one blood relative as a parent. The obvious intent of the two cited enactments, read together, was to prevent alienation from grandparents in all those instances in which the post-death or post-decree adoption has not placed the offspring beyond the circle of the child’s consanguinity. The grandparents in this case meet the statutory test of § 60.16(3) as so construed. This is so because by their adoption the grandchildren have not been given a filial status vis-a-vis two new parents, both of whom are strangers to the blood line.

¶64) Equity must recognize — independent of statute — a claim by the grandparents to access and companionship of their offspring so long as, in the chancellor’s view, this may be done without injury to the welfare of the grandchildren and their existing milieu.5

¶7The court’s view of grandparental statutory claim to the companionship of their offspring is far too narrow to merit my approbation. It rests on an overly restrictive, literal construction of §§ 5 and 60.-16(3). Moreover, the court persists in refusing to recognize that the grandparents’ claim may be entertained in the exercise of the district court’s equitable cognizance.

¶8There is absolutely nothing in §§ 5 and 60.16(3) to indicate — directly or obliquely— that a child’s post-divorce adoption by the custodial parent’s new spouse was to serve as a legislative license either to alienate or even to isolate that child from those of his grandparents who — through no fault of theirs — wound up on the custody-less side of the fractured family. Their claim of access to the offspring for uninterrupted enjoyment of affection and companionship doubtless survives the adoption because it remains unaffected by it. It is nowhere barred either expressly or by implication. No enactment in this state fetters — however slightly — the freedom of equity to recognize grandparental quest for visitation as falling within the purview of its traditional cognizance. No child has ever been legislatively condemned to suffer estrangement from his grandparent and no grandparent’s claim of access has ever been statutorily declared to be non-actionable. All existing impediments to the exercise of chancery jurisdiction are purely self-imposed.

¶9We are free to unshackle ourselves from the straitjacket of the past. We can open the portals of equity with pronouncements that will make that system hospitable to grandparents’ suits for access. Indeed, the court might be wise to follow the course I counsel. Its adoption would rescue from a grave threat of inevitable atrophy those tender feelings of affection, apt to be harbored within every child’s “larger family”, which invariably outlive the broken marriage of the parents but rarely receive from our courts the culture needed for continued, post-divorce nurture and growth. A chancellor’s sympathetic ear — alert to the prob*1112lem by sensitive case law — could succeed in affording protection to these fragile familial ties and thus save them from ultimate destruction in the aftermath of a divorce— unleashed climate of hostility in which each parent selfishly presses our adversary system to win no less than the child’s complete and undivided allegiance.

¶10In this era of widespread and rapid family disintegration, grandparents may well be legally accepted as quite often the only source of emotional stability and psychic calm in the child’s immediate environment. Their concern and affection should not be easily discounted by the courts. The law must open its eyes to the reality of life in a society in which family breakup is an everyday occurrence.

¶11I would hold that the paternal grandparents in this case have standing — both under the statute and in equity — to challenge a judicial inquiry into their quest for visitation. The chancellor should hence be directed to entertain the suit, on remand, and gauge its merits by applying time-honored equitable considerations.

¶12I am authorized to state that WILLIAMS, J., concurs in these views.