Child Visitation Rights for Grandparents
In a perfect world, all parents and grandparents would be competent and fit adults capable of doing what is best and acting in the best interests of the children. During divorce, child custody, visitation schedules and child support are generally established and put into effect by an order of the family court. However, visitation for grandparents is rarely addressed during divorce proceedings. This can leave many grandparents with limited or no contact with their grandchildren without petitioning for a further order of the court.
Basic Rights for Grandparents
Although laws differ from state to state and lawmakers have been slow to recognize the rights of grandparents and enact laws to protect these rights, grandparents are entitled in every state to petition the family court for court ordered visitation or custody of their grandchildren. Grandparent rights are not automatic, not provided for by the United States Constitution and not a matter of common law. However, according to the Encyclopedia of Everyday Law, over the past 35 years, lawmakers in each state have made progress in establishing laws to protect the rights of grandparents with regard to child custody and visitation with their grandchildren.
In 1998, federal legislation was passed to require family courts in every state to recognize and enforce child visitation orders for grandparents from courts in other states. Additionally, every state has enacted a similar version of the Uniform Child Custody Jurisdiction and Enforcement Act, requiring the courts in the state where a child lives to recognize and enforce all valid child custody orders issued by family courts in other states.
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Hurdles for Grandparents Seeking Visitation
In 2000, the United States Supreme Court ruled in the case of Troxel v. Granville that the visitation statute in Washington was unconstitutional because it violated the due process rights of parents to raise their children. Other state courts have come to similar conclusions regarding the visitation rights of grandparents. These decisions have prompted new legislation in several states that would modify and revise the law in regard to visitation rights for grandparents.
Divorce lawyers can assist and provide advice to grandparents who wish to seek a child visitation order as to the status of legislation in the state(s) where the children and grandparents currently reside. Certain conditions that vary from state to state must be met in order for grandparents to be awarded court ordered child visitation or custody, and a local lawyer can advise grandparents as to the provisions of current state law.
Best Interests of the Children
Family courts in all states have the obligation and duty to consider the best interests of the child or children involved before issuing any child custody or child visitation order, including orders granting visitation rights to grandparents. In some states, conditions, requirements and guidelines regarding the best interests of a child are spelled out and detailed in the language of the statute, while in other states, judges must make subjective interpretations of state laws on a case-by-case basis.
Many factors may be considered when a family court judge is faced with making a decision regarding the issue of visitation or custody orders for grandparents. These factors are not unlike the ones considered during a divorce case when the court must make a determination and order regarding child custody and visitation between the parents of minor children. These factors generally include:
- The interest of the general health, emotional health, safety and welfare of the child;
- The ability of the grandparent(s) to meet the needs of the child;
- The wishes of the parents, grandparents and in some cases the child;
- The nature and length of the relationship between the child and the grandparents;
- Evidence of child neglect or child abuse by the parents or grandparents;
- Evidence of substance abuse of the parents or the grandparents;
- The child's adjustment to the home, school and community;
- The distance between where the child and grandparents live; and
- The ability of the parents and the grandparents to love and nurture the child.
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Grandparents' Rights and Adoption
In cases in which the grandchild has been adopted, state laws vary greatly regarding the visitation and custody rights of grandparents. In several states, if a child has been adopted by anyone, including a stepparent or another grandparent, the visitation rights of the grandparents who are not party to the adoption are automatically terminated. In other states, the adoption of a child by a stepparent or another grandparent has no bearing on the visitation rights of grandparents. Additionally, a few states require that the parent of a child be deceased before the family court may order visitation for the grandparent(s) who are the parent(s) of the deceased.
Establishing Child Visitation Rights
In order for grandparents to obtain an order of the family court for child visitation with or custody of their grandchildren, a petition must be filed with the appropriate court. During divorce, the court hearing the divorce proceedings would generally be the same court to determine if an order granting grandparents custody or visitation with the grandchildren will be issued. A local family law attorney may advise grandparents who wish to seek child custody or visitation with their grandchildren as to the specific state laws, procedure and estimated time frame for establishing child visitation or custody. For a case evaluation by a local family law attorney, please call 1-877-349-1310 or fill out our divorce case evaluation form.