Grandparents and Visitation Issues in Custody Matters
Key Points
  • In all 50 states there are statutes dealing with grandparent visitation. That is, grandparents can ask and be granted a legal right to maintain a relationship with their grandchildren.
  • If a grandparent is denied the right to visit the grandchild, the grandparent must prove the entitlement of visitation such as a meaningful relationship with the grandchild before any change in family situation. The grandparent must also show that continued visitation would be in the best interest of the child and if visitation were denied this may be harmful to the child.
  • In any custody or visitation situation with grandparents, you should be able to present expert testimony or an expert witness to substantiate any claims you are making. These experts include professionals such as psychiatrists, psychologists, licensed therapists or other mental health professionals to verify emotional stability of the parties.

Obtaining Court Ordered Visitation:

In the past several years, many states have passed laws that grant rights to grandparents who seek court ordered visitation with their grandchild(ren). These statutes are intended to recognize the importance of a continuing relationship between grandparents and their grandchild(ren). Time spent with grandparents is noted to be of great value to a child’s overall growth experience. In some states the grandparents can only seek court ordered visitation under limited circumstances, such as in the case of the death of a parent". However, in many states, the rights of grandparents have been broadened to allow for visitation rights in the case of divorce. In some instances, the grandparents are unable to spend time with their grandchildren because their child (parent) does not or cannot exercise the option to visitation. In some cases, the distances involved do not allow for easy access to such visitation.

Being Denied the Right to Visitation

In cases where the family relationship is still intact, i.e., the parents are not divorced, there are a different set of standards altogether that will be applied by the court. This would relate to cases where one parent has died and the other does not wish to allow visitation, or both parents, still living, object to the visitation. In these circumstances, the grandparents must go through a two-step process. First, the grandparents must prove their entitlement by demonstrating there was a meaningful relationship with the child(ren) before the change in the family structure. Should the court find this acceptable, the grandparents must then demonstrate to the court that such visitation against the wishes of the surviving spouse is in fact in the overall best interests of the child(ren) in question.

Not surprisingly, the court is often hesitant to grant visitation against the wishes of an intact family. Both judges and mental health professionals have stated in such cases, should the court grant the grandparents’ request, there is the possibility that the child(ren) could lose faith in the overall stability and security of the family structure. In this instance, the positive aspects of a continuing relationship would not be enough to warrant a court order which could bring potential harm to the child(ren).

The Best Interests of the Child(ren)

Often, in order to substantiate the "best interests" of the child(ren), the grandparents must present testimony of "expert witnesses". An expert witness would be a professional, a psychiatrist or psychologist. Sometimes, the court itself will appoint its own mental health professional to conduct evaluations with regards to the emotional stability and functioning levels of the parties involved (i.e., the child(ren), parents, and grandparents). For the most part, it is agreed that the grandchild(ren)’s best interests WOULD be served by a continuing relationship with caring grandparents and other extended family members. It is noted that grandchild(ren) often feel more comfortable discussing certain issues with their grandparents as opposed to friends in a peer group or even the parents themselves. Grandparents are found to be less judgmental than parents and are able to provide a different sort of perspective on issues that have been accumulated through their greater experience.

Child(ren) Born Out of Wedlock

With respect to children born out of wedlock, grandparents may be granted visitation rights only after the actual paternity of the child has been legally established. In cases where parental rights have been relinquished, such as in the case of a child put up for adoption, the court takes the position that the grandparents’ rights have been relinquished as well.

Suggested Reading
Grandparents Rights
Are you having trouble seeing your grandchildren? Do you have a grandchild who is being neglected or abused? Do you know what your legal rights are? The answer to your problems may lie in this book.

Author: Traci Truly, Attorney at Law

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GRANDPARENTS DO 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 do 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.

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