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Grandparent Visitation Rights

Grandparent visitation rights and the visitation rights of other non-parents did not exist more than 40 years ago. Visitation rights, until recently, only applied to a child's parents. Today, however, every state has created statutes to govern the visitation rights of grandparents and certain other non-parents, such as foster parents, caregivers or stepparents.

These visitation laws grant grandparents and these non-parents the legal right to visit a child. The following information explains the importance of grandparents' rights in certain situations and the legal process involved with this sensitive family matter.

State Rights

Each state has incorporated statutory guidelines for granting visitation rights to grandparents. The intent of granting grandparent visitation rights is to allow grandparents to maintain contact with grandchildren.

In general, two types of laws exist: restrictive visitation statutes and 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, however. These types of permissive visitation laws allow a grandparent or another third party to request visitation 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 interest of the child.

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

Because parents have a fundamental right under the Constitution to make decisions regarding 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 visitations to once per month and some holidays.

The U.S. Supreme Court decided that the application of the Washington statute violated Granville's right as a parent to make decisions regarding 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.

As-is 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 obtain visitation rights, even if the parent was perfectly fit to make such a decision. The statute allowed any person to petition for visitation rights and allowed a judge to grant visitation if the judge determined that it was in the best interest of the child, effectively overruling 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

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 substantial 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

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.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

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Next Steps

Contact a qualified child custody attorney to make sure your rights are protected.

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