Grandparents' Visitation and Custody: Background

Grandparents in every state in the country have rights, in some circumstances, to be given custody of their grandchildren or to be awarded court-mandated visitation with their grandchildren.

 Grandparents' rights do not come from the Constitution, nor did they exist traditionally. Recognition of grandparents' rights by state legislatures is a fairly recent trend, and most of the statutes granting these rights have been in effect for less than 40 years.

This article provides a brief overview of grandparents' rights regarding visitation and custody of their grandchildren.

Basics of Grandparent Visitation Rights

The basic premise of allowing grandparents visitation rights is that a child needs grandparents, and other family members, in their lives in order to grow up to be a healthy adult. Grandparent visitation laws often expand visitation rights to other family members as well, including siblings. When this is the case, it may be called "third-party visitation rights" or "nonparent visitation rights."

Visitation rights for non-parents are most common when a child's immediate family is no longer intact. Sometimes this means that parents have divorced and the child would benefit from having grandparents in their life, even if the child's custodial parent does not agree. In other situations, nonparent visitation rights are granted when a child is adopted, or put in foster care. Courts are more likely to grant non-parent visitation when the child has been adopted or is in foster care because the child's biological parents' wishes are not at issue.

Applying for Grandparent Visitation Rights

When a nonparent asks a court for visitation rights, they must show that visitation is in the best interests of the child. When determining if visitation rights are appropriate, courts consider a number of factors, including:

  • The child's relationship with the nonparent;
  • The relationship between the nonparent and the child's parent or guardian;
  • The last time the child had contact with the nonparent;
  • The effect the visitation will have on the relationship between the child and legal guardian;
  • How grandparent visitation will impact the time the child has to visit with his or her biological parents or other family members;
  • Any history of physical, sexual, or emotional abuse or neglect by the nonparent; and
  • Any other factor that the court thinks is relevant to granting or denying nonparent visitation rights.

Grandparents' Rights Under Federal Law

Federal legislation may affect grandparents' rights, though these rights are based primarily on state law. Congress passed the Parental Kidnapping Prevention Act in 1980, which requires that each state give full faith and credit to child custody decrees from other states. Federal legislation titled The Visitations Rights Enforcement Law passed in 1998 also requires that courts in each state recognize and enforce grandparental visitation orders from courts in other states.

Constitutionality of State Statutes

The United States Supreme Court in the case of Troxel v. Granville (2000) determined that the Washington visitation statute violated the due process rights of parents to raise their children. This case and similar decisions by state courts caused several state legislatures to consider bills that would modify or completely revise visitation rights in those states.

Some courts have determined that state statutes providing visitation to grandparents are unconstitutional. Most state laws related to grandparent rights, however, have survived intact. Nevertheless, grandparents who seek to attain visitation rights should check the current status of the law in their respective states.

Learn More About Grandparents' Visitation and Custody Rights From an Attorney

As you can see, federal and state laws are beginning to recognize the important role that grandparents can play in a child's life. However, these rights and the process used to exercise them can differ among the states. Thankfully, you can contact a local child custody attorney who can advise you on the law in your state and advocate for your interests.

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  • Both parents can seek custody of their children — with or without an attorney
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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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