Grandparents Filing for Visitation

Should You File for Visitation

There are a variety of circumstances in which it may be appropriate for a grandparent to file for visitation rights. In the instance where a particular divorce has become quite bitter and a custody battle has erupted, court ordered visitation has been found to give the grandchild(ren) a sense of continuity and stability. This is especially true in the case where the grandparents are the parents of the non-custodial parent.

Parents of Non-Custodial Parent:

Often, the parents of the non-custodial parent recognize that the parent’s time with the child(ren) would be limited, and they themselves do not wish to cut into that valuable, limited time. They will, therefore, seek out the court to obtain their own time with their grandchild(ren). Other situations which often warrant the assistance of the court include those in which the non-custodial parent lives a considerable distance from the grandparent, making access to the grandchild(ren) less feasible or one in which the grandparent does not enjoy a favorable relationship with the parent and visitation is rather limited or outright non-existent.

Grandparents of a Deceased Parent:

In a circumstance where one or both of the parents have died, the grandparent may wish to file for visitation in order to maintain a continuing relationship with the child(ren). This often occurs when the deceased parent is the child of the grandparent seeking visitation and the surviving parent is not necessarily interested in maintaining a grandparent-grandchild relationship. In this instance, visitation is often granted by the court.

Child Adopted by a Third-party (typically a step-parent):

One important fact to bear in mind, however, would be in the case where the child(ren) has been legally adopted by a third party. The grandparents WILL lose all rights with respect to the child(ren). The rationale behind this would be that since in any adoption process the biological parents voluntarily surrender all legal rights, it is found to be a logical extension that the grandparents lose all rights, too. The one major exception to this rule would be a case where the adoptive parents are actually a step-parent or other relative such as an aunt or uncle. It should be noted, however, that if the child of a grandparent legally adopts a child, the grandparent automatically qualifies for legal rights as well.

Non-custodial Parent not Exercising the Right to Visitation:

Another instance in which a grandparent may wish to enlist the aid of the court for visitation would be a case where the non-custodial parent does not exercise his or her rights with respect to visitation of the child(ren). Depending upon the applicable laws of the state in question, it is often the view of the court that a continuing relationship with a grandparent is found to strengthen the child(ren)’s sense of "family" and is therefore in that child(ren)’s best interest. Also, in a situation where the parents of the child(ren) are determined to be unstable, either emotionally or financially, visitation is granted not only as a means of security and stability, but also as an informal method of making sure that the child(ren)’s situation is not drastic enough to warrant further action.

Understanding Your Situation and Making Decisions:

Sometimes there is frequent quarreling over the actual visitation schedule and its implementation which causes further conflict within the family structure. A court order can often provide a measure of regular contact and does not leave the grandparents’ time with the child(ren) contingent upon the whims of one or both of the parents. While the decision to seek the assistance of the court is almost certain to create opposition from one or both of the parents, the intervention of the court, especially in a situation where the grandparent-parent relationship is not good, is often the only way in which a grandparent can continue a meaningful relationship with the grandchild(ren). In the eyes of the court, such opposition by a parent to a request for visitation by a grandparent is not to be unexpected. In fact, it is expected that the custodial parent will attempt to use the poor relationship with the grandparent(s) as a basis on which to fight the requested visitation. It is assumed the relationship is not good in the first place or the visitation request would have never been filed.

There are reasons that would support a decision not to file for visitation. First, litigation can be costly. In addition, if there is evidence produced to support any claims of physical, sexual, or emotional abuse, the court will almost certainly deny the grandparents’ request for the obvious reason that it may not be in the best interests of the child. In some states, a child abuse conviction will automatically disqualify the grandparent; even in states where it does not, it is extremely difficult to prove that a continuing relationship with a person carrying a conviction of that sort is in the overall best interests of the child.

Another reason not to file would be the natural by-product any court intervention would have on the relationship between the grandparent(s) and parent(s). Should a grandparent file a suit against his or her son or daughter seeking visitation, it is quite logical that any unresolved conflicts between these parties will immediately be brought to the forefront once again. It must be remembered, especially in a case where the grandchild(ren) are young, that a hotly contested court battle could potentially do irreparable damage to the grandchild(ren), who is likely to wind up smack in the middle of the battlefield. The grandparents should also keep in mind that a situation such as this may cause problems for the grandchild(ren) when he or she is at home with his or her parents.

There will be financial factors to consider, even if the grandparents choose to represent themselves. And, the age of the child(ren) in question are relevant factors as well. Many courts are hesitant to send infants on visitations as they have been found to sometimes be traumatic for the youngster. Courts also are not particularly eager to order unwilling and/or uninterested teenagers to visit with their grandparents and would most likely advise all concerned party members to work it out among themselves.

How much time will the court be likely to award? Naturally, there is not a specific answer to this question. It may turn out to be as little as a few hours every two or three months; perhaps a little time each month will be granted. Any comparisons to a visitation schedule granted to a noncustodial parent, such as every other weekend, should NOT be made. It is possible that specifics of a particular case will allow for the exception to any law or statute. However, the amount of access will ultimately be left to the individual discretion of the judge issuing the final ruling. It is not unwise to try to find out what viewpoints the judge who will be ruling on the case holds.

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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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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