Grandparent Visitation Rights

Many grandparents may want to be legally part of their grandchildren's lives if the situation calls for it. Visitation laws grant grandparents and non-parents the legal right to visit a child.

Grandparent visitation rights and the visitation rights of other non-parents did not exist more than 40 years ago. Back then, visitation rights and child custody only applied to a child's parents. Today, however, every state has created statutes to govern the visitation rights of grandparents. These laws may also include other non-parents, such as foster parents, caregivers, or stepparents.

When families go through changes, questions about who gets custody of the child can arise. Many grandparents may want to be part of their grandchildren's lives if the situation calls for it. Visitation laws grant grandparents and non-parents the legal right to visit a child.

The following information explains the importance of grandparents' rights. It also discusses the legal process involved with this sensitive family matter.

Grandparents' Rights: A Brief Overview

Often, grandparents form strong bonds with their grandchildren. In some families, they play a big role in the family unit. Yet, family dynamics shift and disputes can arise. Grandparents might find their relationship with their grandchildren disrupted. Sometimes, to keep this connection alive, grandparents might seek legal avenues, such as getting a court order for visitation rights.

There may be situations where the grandchild's parents are unwilling or unable to care for the child. In these situations, grandparents may want to seek grandparent custody. A court order for such custody can provide a stable environment for the grandchild and ensure their well-being. State law governs the grandparent visitation statutes. They determine the conditions and guidelines for how grandparents can see their grandchildren.

Grandparents' Rights Under State Rights

Each state has incorporated statutory guidelines for granting visitation rights to grandparents. The intent of granting these rights is to allow grandparents to maintain contact with grandchildren. Grandparents have visitation rights in many states, but it's essential to recognize these rights often need to be balanced with parents' wishes. After all, unless proven otherwise, parents usually have the primary right to decide who gets to spend time with their children.

In general, two types of laws exist. The first is restrictive visitation statutes, and the second is permissive visitation statutes. Restrictive visitation laws only allow grandparents to seek visitation rights if the parents have divorced or if one or both parents are deceased.

Most states allow more leeway when granting visitation. These types of permissive visitation laws allow a grandparent or another third party to request visitation. This is true even if both parents are alive or still married.

In this situation, the court will consider whether the proposed child visitation arrangement is in the best interests of the child. If there's conflict, grandparents might find themselves seeking a visitation order. This can help establish a formal visitation schedule. The schedule ensures they get specified visitation time. It also allows them to maintain a relationship with their grandchildren despite family disputes.

The U.S. Supreme Court Ruling on Grandparent Visitation Rights

Parents have a fundamental right under the Constitution. This right protects their ability to make decisions about the upbringing of their children. The implementation of some states' visitation statutes has led to constitutional challenges. In Troxel v. Granville, grandparents petitioned for visitation rights after the mother, Tommie Granville, limited visitation to once per month and some holidays.

The Washington statute at issue was extremely broad. It allowed for "'[a]ny person' to petition for visitation rights 'at any time.'" The statute did not acknowledge a parent's fundamental right to raise their child as they see fit.

The U.S. Supreme Court decided that the application of the Washington statute violated Granville's right as a parent. It violated her right to make decisions about the "care, custody, and control" of her children. The Court, though, did not make a finding on whether all non-parent visitation statutes violate the Constitution. It restricted its decision to the Washington statute in question.

That law would have permitted a court to overturn a parent's decision about the visitation of a grandparent or any other person seeking to get visitation rights, even if the parent was perfectly fit to make such a decision. The statute allowed any person to petition for visitation rights.

It also allowed a judge to grant visitation if the judge determined that it was in the best interest of the child. This can effectively overrule the fit parent's decision. The Court held that, by granting judges this power, the Washington statute violated parents' fundamental right to raise their children.

The Troxel Effect

After the Troxel case, many states looked at their own grandparent visitation laws. They wanted to make sure their laws followed the Supreme Court's decision. Because the Supreme Court did not make a finding that visitation laws are unconstitutional per se, every state still allows third-party petitioners to seek visitation rights.

Many states, particularly those with permissive statutes, consider third-party visitation rights as a privilege that only imposes a slight burden on parents' right to control the upbringing of their children.

After the ruling in Troxel, however, states now give much deference to a fit parent's decision of what is best for their child when weighing whether to grant visitation rights. Of course, someone wanting to understand third-party visitation norms in their state should talk to a trusted family law attorney in their area.

Before Seeking Court-Mandated Visitation Rights

It's always a good idea to try and solve family issues without going to court. Family members should try to agree on a visitation schedule. Maybe they can agree on regular visitation times that work for everyone. If that doesn't work, then it might be time to think about getting a court order.

Sometimes a dispute about grandparent visitation rights can be resolved without seeking court-ordered visitation. Mediation is often an effective way to settle disputes without going to court. In mediation, a neutral third party will help the parties communicate and come to a legally binding solution that benefits both sides. Ideally, parties will reach an agreement with less hostility and less legal cost.

Need Legal Help With Grandparent Visitation Rights? Contact a Family Law Attorney

Do you have the right to visit with your grandchildren? The answer is yes in most cases, but every situation is different. In the best-case scenario, you should be able to work out an arrangement to see the children without the court getting involved.

Don't miss out on the chance to see your grandchildren. Your presence in their lives might be healthy for all involved. Most importantly, it could be what is best for the children's well-being.

Find a local family law attorney you trust to help with this personal matter.

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  • Both parents can seek custody of their children — with or without an attorney
  • An attorney can help get the custody and visitation agreement you want
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A lawyer can help protect your rights and your children's best interests. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Once new child custody arrangements are in place, it’s an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and provide for your children. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.

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