The laws surrounding grandparent's visitation rights vary by state but are always intended to support the best interests of the child. For instance, state laws tend to favor grandparent custody (assuming they're fit to be guardians) in the event the biological custodial parent(s) are unfit to care for their child or are deceased. Visitation also may be granted where it can be shown the child would benefit from a relationship with their grandparent(s), if it's otherwise not being facilitated through the parents.
Courts will only order grandparent visitation or custody when particular conditions outlined in state laws are met. In many instances, the required conditions for a grandparent custody action are completely different from the conditions required for grandparent visitation rights action. It's important to understand the court considerations in these particular cases before filing a petition for grandparent visitation or custody in court.
Court Considerations for Grandparent Visitation or Custody: Best Interests of the Child
In all states, the Court must consider the "best interests of the child" when ruling on a case involving minor children. As a result, this "best interest" standard is used by Courts when determining whether to grant custody or visitation rights to a grandparent. In some states, the "best interest" statute provides a list of factors the court should considered when determining what result of the visitation or custody case. Other states do not provide a list of factors in the statute, but courts in those states typically identify factors in custody and visitation cases by interpreting the state statutes.
The following factors have been commonly used in many jurisdictions to determine the best interest of the child involved in the custody or visitation dispute:
- The needs of the child, including considerations of physical and emotional health of the child, the safety of the child, and the welfare of the child
- The capability of the parents and/or grandparents to meet the needs of the child
- The wishes of the parent(s) and the grandparent(s)
- The wishes of the child, if the child is capable of making decisions for himself or herself
- The strength of the relationship between the grandparent(s) and grandchild
- The length of the relationship between the grandparent(s) and grandchild
- Evidence of abuse or neglect by the parent(s) or grandparent(s)
- Evidence of substance abuse by the parent(s) or grandparent(s)
- The child's adjustment to the home, school, or community
- The ability of the parent(s) or grandparent(s) to provide love, affection, and contact with the child
- The distance between the child and the parent(s) or grandparent(s)
What if the Biological Parent is Abusive?
If a grandparent can show that a parent is abusive, unfit, or incompetent, courts are far more willing to grant permissive (and in some cases permanent) rights to grandparents if it's in the best interest of the child. Courts often favor visitation and/or custody (often temporary) during the divorce period as well.
Court Considerations for Grandparent Custody and Visitation vs. Mediation
It's usually best to try to resolve grandparenting time problems amicably, as opposed to through the courts. It may be that the parent who's refusing access will be amenable to having the dispute mediated by a qualified professional. It's usually best to make litigation a last resort -- to be used only when all else has failed.
Get Legal Help with Your Grandparent Visitation or Custody Case
Court consideration for child custody and visitation requests vary widely from state to state. In many cases, it's wise to consider consulting a family law attorney for advice. A lawyer can assist you in understanding the laws in your state, determining the right approach to child custody and visitation, and, if needed, making your case to the court. Reach out to an experienced family law attorney near you today.