Do Paternal Grandparents Have Legal Custody or Visitation Rights?

For some paternal grandparents, there comes a time when they need to understand their legal rights regarding their beloved grandchildren. Some may wish to pursue custody for various reasons, while others may simply seek clarity regarding visitation rights.

If you’re trying to navigate this legal landscape, it’s helpful to understand some of the underlying principles. This area of law is complex. It involves balancing several factors, including:

• Your rights
• The parents’ rights
• The best interests of your grandchildren

In this article, we explore these factors in the context of your rights as paternal grandparents.

Grandparents’ Rights

Generally, grandparents aren’t automatically granted rights with respect to seeing and caring for their grandchildren. But, depending on the circumstances, you may be able to obtain visitation or custody rights.

This involves a formal legal process by which you request court-ordered visitation or custody rights.

Of course, it’s ideal for families to resolve these issues without legal intervention. But sometimes communicating and negotiating with custodial parents fails.

If this is the case, you’ll want to understand your rights so that you can pursue them in state court. The court will ultimately assign custody arrangements as well as visitation and parenting time.

This can be a complicated and emotional journey. A trusted child custody or family law attorney will be essential. They can advocate on your behalf and shepherd you through the process.

Legal Framework

Both federal and state laws govern grandparents' rights to custody and visitation with grandchildren. State laws are generally more significant in this area, but federal law provides an overarching framework.

Neither federal nor state law treats paternal grandparents seeking visitation/custody any differently from maternal grandparents.

Federal Law

As a general rule, parents have a constitutional right to make choices about their child's upbringing. This means that courts should give preference to parents' decisions about their children's relationships.

The U.S. Supreme Court affirmed these principles in Troxel v. Granville (2000). This ruling made it more challenging for grandparents to obtain visitation/custody rights when parents object.

So, state laws primarily govern grandparents' rights. But they must operate within the constitutional framework established by federal law.

This means that state laws that are too broad or don't give enough weight to parents' wishes, for example, may be found unconstitutional based on Troxel.

State Law

State laws governing grandparents' rights typically outline when grandparents can petition for visitation or custody. They vary significantly from state to state. However, most state laws consider common factors, such as:

• The child's best interests
• Relationship between the grandparent and child
• Wishes of the child's parents

Some states require evidence that denying visitation time with grandparents would harm the child.

Acquiring Visitation

The legal process for paternal grandparents to obtain visitation rights can be lengthy. The laws of the state where the grandchildren live will generally govern these requests.

So, the process will vary depending on the state and the specific circumstances. Still, it usually begins with a petition to the state court assigned to handle visitation.

You will be asked to prove certain things relevant to your petition.

We discuss two state-specific examples below.

New York

New York's Domestic Relations Law Section 72 addresses grandparent visitation. The law allows grandparents to petition the court for visitation rights if one or both of the child's parents have died, or in other circumstances where visitation is in the best interests of the child.

Under this law, grandparents must establish standing. They can typically do this by showing either:

• A pre-existing relationship with the grandchild
• An effort to establish one that was thwarted by the parents

When determining the best interests of the child, New York courts have interpreted the law to require grandparents to show that the child would suffer harm or potential harm from the lack of visitation.

This interpretation stems from the need to balance the parents' wishes with the potential benefits of grandparent visitation.

Virginia

Virginia law allows grandparents (and others “with a legitimate interest”) to petition the court for visitation time. This is the same process a stepparent or other non-parent might use for court-ordered visitation.

For visitation petitions, the court must focus on the best interests of the child. It considers several factors, including:

• The child’s age and physical/mental condition, including developmental needs
• Parents’ age and physical/mental condition
• The relationship the child has with each parent, including parental roles and their involvement in the child's life
• The child's emotional and social needs, including relationships with siblings, peers, and extended family members
• Support for parent-child relationship, including each parent's willingness to support the child's relationship with the other parent
• Parental cooperation and ability to maintain a close relationship with the child and resolve disputes
• The child's preference, if they are deemed capable of expressing it
• Any history of family, sexual, or child abuse, or acts of violence

The court may also consider any other factors it deems necessary to determine the child's best interests.

For visitation petitions under Virginia law, the court must determine whether denying visitation would harm the child's welfare, especially if both parents object to the visitation.

Custody

In some cases, grandparents might seek custody of their grandchildren. This generally refers to the legal right to make decisions about the child. It can include:

• Legal custody
• Physical custody

Legal custody involves making important decisions about the child's life, like religious affiliation. Physical custody mainly refers to where the child lives and day-to-day decisions.

A grandparent with both legal and physical custody typically has the same responsibilities and authority as a legal guardian. This includes making all important decisions for the child's well-being and ensuring their overall care. (However, a court order explicitly establishing your legal guardianship may facilitate certain matters.)

Grandparent custody is generally more challenging to obtain than grandparent visitation rights. Courts typically support children remaining with their biological parents absent compelling reasons to do otherwise.

As such, obtaining custody of grandchildren generally involves proof the grandchild’s parents aren’t fit parents.

Virginia

For example, the same Virginia law that governs grandparent visitation also governs grandparent custody. Evaluating the best interests of the child for custody purposes requires consideration of the same factors used for visitation requests.

But there's a major distinction for custody petitions. The courts start with the parental presumption that being with their parents is in the child’s best interests.

It's not impossible to overcome this presumption. But grandparents seeking to do so must provide clear and convincing evidence. It must support one or more of the following:

• The parents are unfit
• The parents have abandoned the child
• There’s a court order that strips parents of custodial rights
• Other extenuating circumstances exist

Virginia’s law is considered particularly restrictive because of its strong parental presumption and high burden of proof.

California

California law is considered more permissive. It allows the courts to place significant weight on the existence of a pre-existing bond between the grandparent and grandchild. The best interests of the child are still the primary consideration when evaluating a grandparent’s petition for custody.

But California makes it easier for grandparents to overcome parental objections if they can show that their custody is in the child's best interests.

Child Support

When grandparents get custody of their grandchildren, the child's biological parents typically retain responsibility for paying child support.

The court may need to issue an order directing the parents to make payments to the grandparents. Still, the parents sometimes fail to make the required payments. In such cases, grandparents can also seek enforcement of the child support order through the court system.

Sometimes the parents are unable to provide support due to financial hardship or other reasons. In such cases, the court may explore alternative funding sources to ensure the child's well-being.

Paternal Grandparent Challenges

While state and federal law treat paternal grandparents’ petitions for custody/visitation the same as maternal ones, paternal grandparents may face additional hurdles.

When seeking the right to see their grandchildren, paternal grandparents may encounter unique challenges. These can arise if:

• The child's parents were never married
• The father isn't listed on the birth certificate
• Paternity hasn't been established
• The mother has sole custody of the child

In these cases, paternal grandparents need to ensure legal recognition of the child’s father before pursuing any rights regarding the child. This may be as easy as a voluntary acknowledgement by the mother. Conversely, some cases may require a court-ordered paternity test.

After establishing paternity, you can proceed with your petition for visitation or custody.

Getting Legal Help

Either way, consider speaking with a qualified attorney. Your best course of action will depend heavily on the circumstances as well as state law.

Sharing the specifics of your situation confidentially with a trusted advisor is your first step. Make sure you do so with an attorney licensed in your grandchildren’s state. They can help you understand your options for ensuring access to your grandchildren.

The processes involved will undoubtedly prove challenging. But finding a credible lawyer to assist you doesn’t have to be.

Findlaw’s directory of dedicated child custody attorneys can get you started. Simply click on your grandchildren’s state. You’ll see contact information for lawyers well-versed in the state’s family laws. You can even narrow your search by city for a list of local lawyers.

This may be one of the most significant crossroads facing you and your grandchildren. Enlist the help of a trusted advocate. They just might be your most important ally.