Grandparents’ Rights

The rights of grandparents to spend time with their grandchildren have been severely limited in recent years both by federal law and by state law.  It is, therefore, important to consult a seasoned attorney who is familiar with the various laws if you intend on making a claim for grandparents’ visitation rights.  If you are a parent or other interested party who is trying to prevent a grandparent from spending time with a grandchild, you should also become familiar with the prevailing laws and statutes governing this specific area of law.

Historically, many courts believed that it was in the best interest of children to spend time with their grandparents, and of course, in many cases, this is still true.  It was customary, some years ago, to grant visitation rights to grandparents, provided that doing so would serve the children’s best interests.  This was particularly important when the parents were divorced, or one of the parents was deceased.

The law began to change substantially in 2000, when the United States Supreme Court ruled in the case of Troxel v. Granville. In the Troxel decision, the U.S. Supreme Court held that the interest of parents in the care, custody and control of their children was a fundamental liberty in the United States, and the Due Process Claus of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning their children.  On this basis, the Supreme Court struck down the grandparents’ visitation law in the State of Washington because it unconstitutionally infringed on the fundamental rights of parents.  In effect, courts must now give special weight to the decisions of parents concerning when grandparents may associate with their children.

In the years since then, many states have modified their laws to make it more difficult for grandparents to invoke their visitation rights, particularly in circumstances where the parents themselves do not want the grandparents to be involved with the children.  It is important to consult the law in your state to determine what the governing standard for grandparents to invoke their rights.  If you fail to consult the standard and fail to prove that you meet the standard, you may not be entitled to grandparents’ visitation rights.

In many states, there are published statutes which set forth factors that a judge will consider in determining whether grandparents will be entitled to visitation rights with their grandchildren. The factors will also be considered by certain courts to determine how much visitation grandparents will receive, and under what circumstances. Among the factors are:

  • The relationship between the child and the grandparent;
  • The relationship between each of the child’s parents or the person with whom the child is residing and the grandparent;
  • The time which has elapsed since the child last had contact with the grandparent;
  • The effect that such visitation will have on the relationship between the child and the child’s parents or the person with whom the child is residing;
  • If the parents are divorced or separated, the time sharing arrangement which exists between the parents with regard to the child;
  • The good faith of the grandparent in filing the application;
  • Any history of physical, emotional or sexual abuse or neglect by the grandparent; and
  • The love, affection, and other emotional ties existing between the minor child and the grandparent, including those resulting from the relationship that had been previously allowed by the child’s parent;
  • The length and quality of the previous relationship between the minor child and the grandparent, including the extent to which the grandparent was involved in providing regular care and support for the child;
  • Whether the grandparent established ongoing personal contact with the minor child before the death of the parent, before the onset of the parent’s persistent vegetative state, or before the parent was missing;
  • The reasons cited by the respondent parent in ending contact or visitation between the minor child and the grandparent;
  • Whether there has been significant and demonstrable mental or emotional harm to the minor child as a result of the disruption in the family unit, whether the child derived support and stability from the grandparent, and whether the continuation of such support and stability is likely to prevent further harm;
  • The existence or threat to the minor child of mental injury;
  • The present mental, physical, and emotional health of the minor child;
  • The present mental, physical, and emotional health of the grandparent;
  • The recommendations of the minor child’s guardian ad litem, if one is appointed;
  • The result of any psychological evaluation of the minor child;
  • The preference of the minor child if the child is determined to be of sufficient maturity to express a preference;
  • A written testamentary statement by the deceased parent regarding visitation with the grandparent. The absence of a testamentary statement is not deemed to provide evidence that the deceased or missing parent or parent in a persistent vegetative state would have objected to the requested visitation.

If your case involves a consideration of the statutory factors, you should consult your specific state law to determine which factors are recognized in your state.

In contested grandparents’ visitation cases, it will be necessary to gather evidence to support each of the factors and to meet the burden set forth in the prevailing case law.  Although the law has not been very protective of grandparents in recent years, each case is different, and each state law is different.

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