The Rights of Grandparents in Visitation and Custody Cases

When we talk about grandparents’ rights in family cases, the term can be misleading. Grandparents don’t have rights in a constitutional way. However, in every state, there are circumstances in which grandparents may be given some rights over children, ranging from custody to visitation.

The recognition of grandparents’ rights is a relatively new development, and there are variations from state to state. Most of the statutes have been in place for less than three decades. Every statute requires its courts to consider the best interest of the child before awarding custody or visitation to grandparents.

Grandparents have legal visitation rights in most states
Grandparents have rights in all states

In the past, the role of grandparents in bringing up children was downplayed by the courts. Grandparents are heavily involved in some families and may even be primary caretakers. A list of grandparents’ rights has been published by Findlaw.

Here are some key rights:

Visitation Rights for Grandparents

The courts don’t need to get involved when parents or guardians allow or encourage visits from grandparents to grandchildren. It gets more complex when visitation is denied by parents. In such cases, If parents or guardians encourage or, at least, allow grandparents to visit their grandchildren, then no grandparent can approach the court to obtain visitation rights. They must prove that it is in the child’s best interests to grant those rights. Some pertinent factors include:

  1. The relationship between the child and the grandparent
  2. What impact the visitation will have on the child and his or her parents
  3. How recently the child was in contact with the grandparent
  4. The likely effect of visitation on the child and parent
  5. Whether granting visitation by grandparents would interfere with the child’s time with his or her parents
  6. Whether a grandparent has ever neglected or abused a grandchild.

Most states allow some visitation by grandparents unless there are other concerns such as alcohol or drug abuse.

The legal concept of allowing grandparents to visit with their grandchildren, even when the parents of the children object, is based on the idea that children need contact with their grandparents. An exception to this approach is where an objection is based on a serious concern such as neglect or abuse.

Courts in each state are required by federal law to recognize and enforce non-parental visitation orders granted in other states. But some states have gone too far. The U.S. Supreme Court struck down the nonparent visitation portion of Washington state’s visitation statute as unconstitutional, ruling that it violated the due process rights of parents to raise their children.

In the case of Troxel v. Granville, the Supreme Court reviewed the case from Washington State. The justices found that parents have a fundamental right to make decisions about raising their own children. However, the court did not agree that Washington State’s permissive visitation statute was unconstitutional or with the argument that allowing a nonparent to petition for visitation rights amounted to an assault on the integrity of the family unit.

In the wake of the Troxel ruling, many states changed their grandparent visitation laws to be consistent with the ruling that the starting presumption should be in favor of the parents, and judges are now very careful about taking parents’ wishes into account when resolving disputes.

Custody by Grandparents

Grandparents face an uphill task to gain custody of their grandchildren in most states. Unless a parent has voluntarily given up his or her parental rights, grandparents will likely have to prove that the parent is unfit to gain custody. However, some states have laws that make it easier for relatives who already have physical custody of children to obtain legal status based on the best interests of the child. See HelpGuide.org for more details.

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