Grandparents’ Rights Facts and Tips
Grandparents Have Rights
Grandparents in every state have rights, in some circumstances, to be awarded custody of their grandchildren or to be awarded court-mandated visitation with them. However, grandparents' rights are not constitutional in nature, nor did they exist in common law. Recognition of grandparents' rights by state legislatures is a fairly recent trend, and most of the statutes have been in effect for less than 35 years.
Grandparents' Rights in Conflict
The rights of grandparents and the parental rights of their adult children come in conflict when grandparents seek custody or visitation against the wishes of the children’s parents.
Troxel v. Granville
Since 2000, when the United States Supreme Court handed down its decision in Troxel v. Granville, courts have been more cautious about the scope of any grandparent’s rights against the wishes of parents. In Troxel v. Granville, the court addressed third party rights to seek court-enforced time with children. The decision made clear that there were certain prerequisites that grandparenting time statutes must meet in order to be constitutional.
Arguments For Grandparents' Rights
Advocates of grandparents' rights argue that the grandparents may provide a stabilizing role in their grandchildren's lives, particularly after a divorce or the death of a parent, that the loss of contact with grandparents can be traumatic when they previously have been involved in a child's life, and the fact that parents are divorced, or the one is incarcerated should not automatically grant the custodial parent the right to sever a relationship between the grandparents and their grandchildren.
Arguments Against Grandparents' Rights
Opponents of grandparents' rights contend that the state has no business interfering with the child-rearing decisions of competent parents, even if the parent determines that grandparent visitation will not be permitted, that some grandparents are excluded from their grandchildren's lives for good cause, for example, when they were abusive to their own children and cannot be trusted with the grandchildren, that some grandparents interfere with ordinary parental decision-making, or badmouth one or both parents to the grandchildren, creating unnecessary conflict, and that when conflict exists between parents and grandparents, even if the parents are being unreasonable, court interference can destabilize the home environment of the grandchildren.
Don't Go to Court
Grandparents who want visitation should try to negotiate with their adult children rather than taking the case to court. Like divorce, court battles among family members, however high minded, tend to make for lasting bitterness and recriminations. It is usually best not to make threats.
Remember the Children
Grandparents should remember that their grandchildren do not need the stress of a custody or visitation fight between their parents and grandparents.
Grandparenting time will ordinarily be governed by the laws of the state where the grandchildren reside.
Grandparents with Custody
Grandparents who are custodians of their grandchildren can and should protect their right by obtaining legal guardianship over the grandchildren or by actually obtaining an order of custody. Absent a formal legal grant of rights, grandparents may find it much more difficult to preserve their relationship with their grandchildren, or to protect their grandchildren from being restored to the custody of a parent who is not ready to assume responsibility for them.
State of the Law
The circumstances under which court enforced grandparenting time can be obtained varies from state to state, depending upon each state's interpretation of the Troxel case.
Resources & Tools
DON’T GO TO COURT – Grandparents who want visitation should try to negotiate with their adult children rather than taking the case to court. Like divorce, court battles among family members, however high minded, tend to make for lasting bitterness and recrimination.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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