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Family Law: Grandparent Custody and Visitation

Children often form emotional bonds with their grandparents. It can be difficult to preserve these relationships when the marriage of the children’s parents falls apart. Grandparents who are close to a child can request a court order granting them visitation rights. Courts in many states rely only on the best interests of a child when deciding whether to grant this request. While the law remains unsettled, these permissive statutes have survived most challenges and require only a rational reason to grant visitation rights to grandparents. In some states that use permissive statutes, however, laws have changed to require courts to take the parents’ wishes into account as well as the best interests of the child. As a result, grandparents now may shoulder a heavier burden in pursuing visitation rights.

Meanwhile, courts in a minority of states do not base grandparent visitation rights on the best interests of the child. These states place a strong emphasis on the rights of parents to raise children as they see fit. They will allow parents to prevent grandparents from having contact with their grandchildren, as long as both parents agree. Grandparents who want visitation rights in a state with this type of law should consider pursuing mediation with the parents. Once the interests of both sides are explored, a satisfactory arrangement may be reached that carves out some visitation time for grandparents.

In general, a grandparent seeking full care and custody of a grandchild may file a petition for custody with the court. Because most courts prefer that children live with their parents, a grandparent’s right to obtain custody is typically limited to the following situations:

  • The child’s parents are deceased.
  • The child’s parents have been deemed unfit to retain custody.
  • The child’s parents consent to grandparent custody.
  • The child has lived with a grandparent or grandparents for a year or more.
  • In all child custody cases, courts attempt to determine what custody arrangement is best for the child. The court may consider the child’s degree of contact with a grandparent before the custody petition is filed, the child’s relationship with other blood relatives, and the grandparent’s age, health and financial ability to support the child.

Grandparents Seeking Custody of Grandchildren
If you believe that your grandchild would have a better life with you than with his or her parents, an uphill battle may lie ahead. As a preliminary matter, grandparents must show that their age, health, and financial situation allow them to properly care for their grandchildren. A court then will weigh both the child’s best interests and the rights of the parents to control their children’s upbringing. A grandparent must have a very strong case to succeed in taking custody of a grandchild.

This is especially true if both parents are still alive. Unless the parents consent to give up their custody rights, a grandparent may need to show that both parents are unfit to have custody of a child. A finding of unfitness can stem from child abuse or neglect as well as substance abuse or mental illness. When this happens, however, grandparents still may need to overcome attempts by other family members to get custody of a child. Competing claims for custody by multiple non-parents will be resolved according to the best interests of the child. In some cases, a court will require grandparents to have cared for a grandchild for at least one year before awarding them custody.

When a parent who has custody of a child dies, a grandparent may have a somewhat better chance of establishing custody. But courts still prefer to place the child with the other parent if possible, unless it is not in the child’s best interests. If this is not possible or not in the child’s best interests, grandparents or other close family members may be able to gain custody. A grandparent will have an especially strong case if the custodial parent and grandchild were living with them already, since courts value stability during a child’s development. It also can be helpful to show that the child wants to live with the grandparent, or that the deceased custodial parent named the grandparent as the child’s legal guardian in a valid will.

Grandparent Visitation Rights
Events such as divorce or separation may divide a family, and may cause a parent to limit a grandparent’s contact with his or her grandchildren. Grandparents seeking to maintain or reestablish visitation with grandchildren are encouraged to resolve the situation without resorting to legal action. Some courts will not proceed until all non-legal options have been exhausted. Grandparents may attempt to discuss the subject of visitation with parents on their own, or they may seek the assistance of a neutral third-party mediator. If the issue remains unresolved, grandparents may petition the court to obtain a visitation order.

Visitation Orders
All states have currently enacted some form of “grandparent visitation” statute, giving grandparents the right obtain a court order to see and interact with their grandchildren. Visitation orders specify the date, time, and circumstances under which visitation must occur.

Restrictive Visitation Statutes
The scope of grandparent visitation rights varies significantly between states. Approximately 40% of states have enacted “restrictive” visitations statutes. Restrictive visitation statutes allow grandparents to obtain a visitation order only in the following situations:

  • The child’s parents have divorced or separated.
  • One or both of the child’s parents have died.
  • Even if the above requirements are met, a grandparent will only be granted visitation rights if the court finds that visitation is in the best interests of the child and that visitation does not interfere with the parent-child relationship.

Permissive Statutes
A majority of states have enacted permissive grandparent visitation statutes. Permissive visitation laws allow grandparents to obtain visitation orders so long as visitation is in the best interests of the child. Visitation is typically found to be in the child’s best interests if a grandparent can show evidence of a consistent and caring relationship between grandparent and grandchild, and if the visitation does not interfere with the parent-child relationship.

Restrictive and permissive visitation statutes have been challenged in court by parents who argue that visitation orders interfere with a parent’s fundamental right to make decisions for his or her children. The United States Supreme Court has struck down such permissive visitation laws, finding that the parents of a child have a constitutional right to control the child’s upbringing that overrides any third parties’ petitions for visitation to which a fit parent objects. Troxel v. Granville, 530 U.S. 57 (2000).

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