Many grandparents develop strong bonds with their grandchildren and play a key role in their lives. But when the grandchild's parents divorce or one parent dies, the parent with custody may try to reduce or even deny entirely visits by his or her former spouse's parents. This loss of contact with grandchildren can be devastating to the grandparents and harmful to the grandchildren. But if this happens, grandparents have some tools available to help increase the chances they will still be able to visit their grandchildren on a regular basis and be a meaningful part of their lives.
Grandparent Visitation Laws
All states have "grandparent visitation laws.” These laws state the circumstances under which grandparents are entitled to petition a court for visitation time with their grandchildren as well as the factors that courts are directed to evaluate when determining whether to grant visitation rights to grandparents.
The circumstances under which grandparents are entitled to petition a court for visitation time with their grandchildren vary from state to state. In some states, the laws require that the child's parents have divorced or separated, a parent has died or the child was born out of wedlock before grandparents' are permitted to file a petition. In other states, grandparents are entitled to file a petition for visitation rights even if both parents are alive and still married. Depending on the state, adoption can also cut off a grandparents' visitation rights.
Grandparent visitation laws also vary significantly from state to state in the factors that courts are directed to evaluate when determining whether to grant visitation rights to grandparents. Some of these laws give courts the power to award grandparents visitation rights even over a parent's objections provided the court finds that doing so is in the child's best interest. Some laws apply a tougher standard for the grandparents to meet. Because grandparent visitation laws can infringe on a parent's rights to determine how his or her child will be raised, these laws are a frequent source of challenge in courts. A landmark Supreme Court decision in 2000 addressed the issue of grandparent visitation laws.
Overly Broad Statute Struck Down
The case involved grandparents in Washington state who went to court to obtain more visitation time with their two granddaughters, the children of their deceased son. The girls’ mother allowed some visitation but less than the grandparents wanted. A state court first ruled for the grandparents, relying on a permissive state law that let judges give visitation rights to grandparents when it was in the child’s best interests. The mother appealed, and the case went all the way to the U.S. Supreme Court.
The Supreme Court ruled for the mother, striking down the Washington law. It called the law "breathtakingly broad," since it gave courts the power to grant visitation requests from "any person" (even non-relatives) at "any time." The Court said parents, not judges, have a “fundamental right” to decide what visitation is best for their child. As long as a parent properly cares for his or her child, the Supreme Court said the parent should normally not be told by a court what visitation to allow.
As a result of this decision, it has become more difficult for grandparents to obtain visitation with their grandchildren when a parent objects.
Some states changed their grandparent visitation law in response to the Supreme Court's ruling. Because grandparent visitation laws vary significantly between states, it is important to seek legal help when grandparents are seeking visitation with their grandchildren. At a minimum, one criteria grandparents will have to meet is showing that visitation is in the best interests of the grandchildren. But this alone may not be enough after the Supreme Court's ruling, and grandparents may have to show more, such as they have a preexisting strong relationship with their grandchildren. Other factors that in many states can enter into a court's decision whether to grant visitation to grandparents include:
• the wishes of the child's parents (and the child depending on his or her age);
• any evidence of abuse or neglect by the grandparents;
• the grandparents' mental and physical health;
• the distance between the parties;
• the length and quality of the prior relationship between the child and grandparents; and
• the affect on the mental, emotional and physical well-being of the child.
Mediation as an Alternative
Because family law disputes can be highly emotional and cause damage to the family structure, parties should consider alternatives to going to court. One alternative is mediation, where the parties can meet with a neutral mediator who is experienced in handling family law disputes and who will help facilitate a solution that is acceptable to all parties. If the mediation is unsuccessful, the option of going to court still remains (some states require mediation before grandparents can seek a court order granting visitation).
Grandparents often play an invaluable role in the development and lives of their grandchildren. When divorce, separation or death of a parent leads to grandparents being cut off from visiting their grandchildren, the results can be detrimental to both the grandparents and the grandchildren. Grandparents who are denied visitation should call our law firm to learn their rights under state law to maintain regular visitation with the grandchildren, as well as the best ways to gain visitation that will help promote harmony between all the interested parties.
Contact an attorney at Triscaro & Associates today. Please call us for all your legal needs. We offer a full range of legal services to individuals, families and businesses, including personal injury, estate planning, real estate, family law and business matters. We are dedicated to providing the highest quality legal services at a reasonable cost.