Grandparent Rights & Grandparent Visitation
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UPDATED: Feb 20, 2013
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Grandparents’ rights to visitation with their grandchildren may be different depending on the state in which the grandparents and grandchildren live. Grandparents can petition in court for grandparent visitation rights, but there are some restrictions on their ability to do so. The biggest obstacle to grandparents petitioning for visitation rights is that according to the U.S. Constitution parents have a fundamental right to the care, custody, and control of their children. This right includes making decisions for the child about whether grandparents should be allowed visitation with the children.
Grandparents’ rights were greatly affected by a U.S. Supreme Court case in 2000 that examined the rights of third parties such as grandparents to petition courts and receive court enforced child visitation orders over the parent’s objections. In Troxel v. Granville, the Supreme Court invalidated a Washington State law allowing these third party petitions. The Supreme Court said that parents have a fundamental right to parent and raise their children, and to make a wide variety of decisions regarding the upbringing of their children, as long as the parents are not unfit. So, parents who are fit are within their rights to decide whether and when visits with grandparents are in a child’s best interest. However, this doesn’t mean all hope is lost for grandparents who are denied visitation access to their grandchildren.
Grandparents’ Rights to Visitation
Grandparents’ rights are limited by the fundamental rights of parents to make decisions for their children, but the U.S. Supreme Court didn’t prohibit grandparents from petitioning the court for visitation altogether. Nor did the Supreme Court state that grandparents’ rights to visitation are only possible if refusing to allow grandparents visitation with children would harm the child. What the Court did state was that parental objections to visitation should be given special weight, and that any grandparent visitation orders must be justified by certain special factors, as discussed below.
As a result of the decision, many states changed their laws and interpreted the ruling in different ways, some affording grandparents more rights than others. However, most states, including Colorado, New York, Delaware, New Jersey, Ohio, Pennsylvania, Utah, and West Virginia, have systems in place to consider whether affording rights to the grandparents might be in the best interests of the child. New York law, for example, establishes a presumption in favor of a parent’s right to choose whether to allow the grandparents visitation, but allows grandparent visitation to be awarded if the grandparents can prove that the child’s interest in visiting the grandparents is great enough to override that presumption.
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Overcoming a presumption of parental right can be difficult, no matter where you live or the specific standards for your state. Grandparents who prove a parent is unfit or that a child is actively being harmed will have the best chance of being awarded visitation, or even custody in some cases.
In addition, if grandparents acted as a primary caregiver or guardian of the child, grandparent visitation will more likely be granted. Grandparents who have the best chance of success at getting visitation are those who have had a primary role in care of the child. Also, it may help grandparents gain visitation rights with their grandchildren if grandparents have acted as caregivers to the child or functioned in a parental role. Regular child care is one way grandparents can show that they have fulfilled primary needs of the child, other ways might include providing basic necessities such as housing and medical treatment.
It is also a basic requirement that grandparents be denied visitation completely in order for a court to enforce the grandparents’ visitation rights. If visitation is allowed, however rare, grandparents are much less likely to convince a court to intervene and allow the grandparents court enforced time with the children. In fact, in some states, courts will not entertain requests for court intervention from grandparents who are not denied visitation completely.
The family circumstances may also play a role in whether a court may be wiling to order grandparent visitation with grandchildren. For example, where the biological parent of a child has died and the other parent decides to sever the relationship of a child with deceased’s parent’s side of the family, the grandparents may have a better chance of receiving favorable treatment from a court. Divorce may also play a role. Where a divorce occurs or where one parent loses parental rights, and the other parent refuses grandparents visitation time with the children, a court may be more likely to intervene. Where a family is intact and both parents are fit, though, a court would be reluctant to question the determination of the child’s parents that visitation with grandparents is not in the child’s best interest.