Understanding Grandparent’s Rights and Options in Custody
Understanding Your Rights and Options
At one time, it was not uncommon for grandparents and their adult child(ren) to actually live within close proximity of one another. This type of situation allowed for easy access between grandparents and their grandchild(ren). Today’s contemporary society, however, is not quite so simple; many children live far away from their parents, thus, many grandparents are able to spend time with their grandchild(ren) only once or twice a year. What’s worse, given the ever increasing divorce rate in the United States, many grandparents must enlist the aid of a court of law in order to obtain visitation with their grandchild(ren).
Although it is unknown exactly how many court-ordered visitation cases exist in our country today, the experts all agree that the number of these instances are only escalating.
Grandparent visitation rights issues usually come out of the ashes of a messy divorce. Quite often, the custodial parent intentionally or otherwise denies access to the child(ren), leaving the non-custodial grandparents no alternative other than to seek court intervention. Moreover, even if a grandparent is successful in securing visitation via the court in one state, it is quite possible that the process would need to be started again should the grandchild(ren) and the custodial parent move to another state.
It is always best to try to have grandparent issues resolved in the actual divorce decree itself. Most states will grant visitation as a by-product of biological lineage and consider it important that a child be able to maintain a rewarding and continuing relationship with grandparents. However, bear in mind that the ultimate "relevant factor" in any state will be whether or not the visitation will be determined to be in the "best interests of the child".
Implementing a Plan of Action:
For grandparents who do not have such visitation spelled out in the divorce agreements, there are some general rules of advice to be followed:
It is never a good idea on the part of the grandparents to be too aggressive or forceful in their quest for visitation. This is especially helpful when a divorced custodial parent has remarried. It is important that time be allowed for the new marriage to work out, mostly for the sake of the child(ren), who are apt to be divided in terms of loyalty to the divorced (or even deceased) parent.
It is also not recommended that legal proceedings begin immediately. All avenues of negotiation should be exhausted first. Many professionals suggest the use of a third-party, professional mediator. Often, the custodial parent will resist the visitation out of fear that the non-custodial grandparents will fill the grandchild(ren) with negative thoughts. The noncustodial grandparents and the custodial parent should first attempt to work out some sort of visitation schedule among themselves.These types of agreements usually work out best because none of the involved parties will tend to feel anything was forced upon them.
Should there be no alternative to court action, if and when the grandparents meet with an attorney they should be prepared to produce documented evidence and a list of witnesses and facts to substantiate the all important "best interests of the child" claims. The most important piece of evidence in any state would be to demonstrate that a consistent and caring relationship was well established prior to the divorce.
In a situation where there is a measure of animosity towards the divorcing parents and even grandparents, it is important that the child(ren) be sheltered from any and all conflict as much as possible. It is also very important to keep in mind that, although grandparent visitation is generally acknowledged to be healthy, it is not meant to override the basic right of parental autonomy.
Resources & Tools
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 grandparents’ 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.
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"A Plain English Guide to Protecting Your Children"
Author: Mary L. Boland, Attorney at Law
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