Child Custody: Grandparent Rights & Visitation

Know It Yourself: Grandparents' Rights

Every parent-of-a-divorced-parent situation is different, as is every state's laws. Generally, if defining grandparents' legal rights are deemed beneficial to the welfare of a child, it can be done.
Only in extreme circumstances will parents' wishes be overruled.
Very complex, petitions for modifying custody and visitation orders should be filed with the help of an experienced legal specialist from the child's home city.

When it comes to the laws that govern child visitation or custody, many states consider grandparents to be parties with a "legitimate interest." Of course, when it comes to any issue the most legitimate interests of all, according to the court, are the interests of the child. It just makes sense that the child's relationship with his or her extended family is an important consideration when parenting plans are decided. In legal terms, however, that point must be specifically set out in proposed parenting plans and visitation agreements.

Petition for Visitation

In the event of a divorce, grandparents could intervene with a petition to request visitation. There are many factors contributing to the weight that the court will likely give such a petition. The most important factor, though, is whether or not the linking parent (child of the grandparent) is still living. If so, it is unlikely that the court will want to get involved. It will be assumed that grandparents have the opportunity to see their grandchildren during their children's visitation. If all players are alive, it is generally up to the grandparents' kids (the divorcing parents) to provide the input for the visitation arrangements.

Sure, things can be more complicated than just addressing whether both parents are alive? (Come to think of it, legal matters are never that simple.) There are limitations under which a court can order grandparent visitation, but in the final analysis, if the situation warrants it, the court has the power to allow additional visitation.

The difficulty for the grandparents is that they may have to prove to the court that harm will occur to the grandchild's health or welfare in the absence of visitation. This is a difficult burden of proof to achieve, especially if one or both parents make a good impression in court and can offer the child what is indeed in the child's best interest. The typical view is that parents have a fundamental right to their child's care, custody and management. Only a compelling interest would be sufficient to allow a state to interfere with the parent's right to raise his/her child without interference.

Grandparents sometimes join an action between the parents. They sometimes start an independent action for the purpose of obtaining a court order for grandchild visitation. Either way, grandparents who wish to contest the visitation/custody order, independent of the child's parent(s), should seek separate counsel. That way, their case will be presented in their best interests and their interests only-with no conflicts to possibly compromise those interests.

Are the Parents Living?

If one parent has died-either before or after a custody order-and a visitation order is in place, the grandparents' wishes are sometimes given greater significance. Naturally, if one parent is living, there is typically a preference that custody of a child will be with that parent over any more distant relative.

Have Both Parents Died?

When both parents have died, the preference is almost always that custody will go to a blood relative. In these tragic cases, grandparents might demonstrate to the court that it is better for the child (in the child's best interest) to be in their custody as opposed to other blood relatives. Since it is all for the child's long-term good, courts will consider things such as the grandparents' ages, health, and finances.

ON YOUR OWN

Even if both parents are still living, if it is in the best interest of the child, a grandparent can gain custody of a child. In cases of abandonment by both parents, for instance, grandparents should:

Begin with a petition in the Juvenile and Domestic Relations Court in the child's county of residence. 2.
Notice of the hearing must be given to the parents.
An experienced local attorney should be consulted, as the procedures in attempting to get custody are extremely complicated.
In these situations, the child's testimony (if the court allows it) will be yet another factor in the ultimate determination of custody and visitation. Be aware that the younger the child (usually seven years old and younger), the less inclined the court is to hear the child's testimony. This is because most very young children may not understand the concept of a lie versus a truth, the consequences of telling a lie under oath, and the like. If you as a grandparent believe your grandchild is able to testify, speak to an attorney who can help you locate experts to interview your grandchild. Those experts can inform the court that they believe the grandchild is able to testify, as well.
Be advised: Ever since the Supreme Court July 2000 decision of Troxel v. Granville, grandparents have essentially lost all fundamental rights to visitation or custody. (Read all about it at http://straylight.law.cornell.edu/supct/html/99-138.ZO.html) The Court recognized a parent's role in the rearing of a child and stepped away from governmental intrusion upon that relationship. Parents now have the final say-so whether to allow anyone (grandparents, uncles, and aunts included) to see or talk to their children. In essence, if a parent decides to allow grandparent visitation, or any other familial arrangements, it's on the terms that those parents decide, and not the courts. If the parent says "no," in the absence of a dire reason, that parent's decision will stand.

Grandparents should not take seeking grandchild visitation or grandchild custody lightly. Frankly, this type of case requires skilled legal advice from someone in your locality qualified to handle grandparent's rights. Only a qualified attorney can advise you of the law in your state and assess the merits of your case.