Grandparent Rights: Visitation vs. Custody

Grandparents may seek custody instead of visitation when the child’s parents cannot provide proper care.

As family dynamics evolve, grandparents can play an essential role in a child's well-being. Striking a balance between parental rights and grandparent rights can be complex. Grandparents navigating these rights should understand the legal differences between visitation and custody.

Recognition of grandparents' rights by state legislatures is a fairly recent trend. Most statutes granting these rights have been in effect for less than 40 years.

This article provides an overview of grandparents' rights. It discusses both visitation rights and custody rights. It will help you understand a general overview of grandparent rights throughout the country. But, keep in mind the specifics vary by state.

Grandparents' Rights Generally

Grandparents may seek custody or visitation rights of their grandchildren in certain circumstances. But these rights are not automatic. They depend on the parental rights and custody of the child.

In some cases, grandparents may seek custody of a grandchild if the child's parents are unable or unwilling to care for them. This may involve a legal process establishing custody rights, including child support payment.

Grandparents may seek visitation rights if a child's parents are divorced, separated, or deceased. But, the legal rights of grandparents and other non-parents in may vary by state.

To establish visitation rights, grandparents may need to prove a close relationship with the grandchild. They must also show that their involvement in the child's life is in the child's best interests. But, the constitutional right of parents to make decisions is prioritized.

Grandparents' Rights Under Federal Law

The United States Supreme Court has weighed in on the rights of the parents versus grandparents. Essentially, parents have a fundamental right to decide who their child spends time with.

But, if the court believes spending time with the grandparent(s) is in the child's best interest, they may issue a court order. The court will consider factors like the child's safety, physical health, and emotional well-being.

Federal legislation may affect grandparents' rights. But, these rights are based primarily on state law. Congress passed the Parental Kidnapping Prevention Act in 1980. This law requires that each state give full faith and credit to child custody decrees from other states.

Federal legislation titled the Visitations Rights Enforcement Law was passed in 1998. This law also requires that courts in each state recognize and enforce grandparental visitation orders from courts in other states.

Constitutionality of State Statutes

The case of Troxel v. Granville (2000) saw the United States Supreme Court determine the Washington visitation statute violated the due process rights of parents. In short, it violated fit parents' rights to use their best judgement in how they raise their children.

This case and similar decisions by state courts caused several state legislatures to consider bills that would change 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 have survived intact. Even so, grandparents who seek visitation rights should check the current status of the law in their own state.

Grandparent Custody Requirements and Rights

Statutory provisions for child custody are usually less specific than grandparent visitation. First, courts must consider the parent-child relationship with each parent.

If either or both parents are alive, courts in most states will presume that the parents of the child should retain custody. The court will always put the best interests of the child first. Ultimately, the court prioritizes the child’s safety and well-being in child custody cases.

How Courts Make Custody Decisions

The court will consider several different factors to make a custody decision. For example, the court might consider the child's wishes if the child is old enough. The court will look at the physical health and mental health of each parent. They will also consider any history of domestic violence or substance abuse.

If the court finds one parent is unfit, they might terminate their parental rights. This typically only happens when:

• There has been severe abuse and neglect of the child
• The parent has been given ample opportunity to change the situation

In these situations, one parent might lose legal or physical custody of their child. The court also might order the parent who does not have primary physical custody to pay child support through a court order.

Grandparents must generally prove the parent is unfit to convince the court to award custody to them. It's generally very difficult for a grandparent to get custody of their grandchild against the parent's wishes. Other non-parents and family members might also petition the court for custody of a child.

What if the Biological Parent Is Abusive?

If a grandparent can show that a grandchild's parent is abusive, unfit, or incompetent, courts are far more willing to grant permissive rights to grandparents if it's in the best interests of the child. In some cases, courts may enter a permanent order. Courts often favor visitation and custody (usually temporary) during the divorce.

Deceased Parent and Grandparent Custody

A minority of states require that at least one parent is deceased before a court can award custody rights to the parent of the deceased parent of the child. For example, the court may award a maternal grandparent in one of these states with custody only if the mother of the child is deceased.

Grandparent Custody Cases

In other situations, non-parent visitation rights are granted when a child is adopted or put in foster care. This may lead to a custody case.

Physical custody pertains to where the child lives. Legal custody involves decision-making for the child. Sometimes, grandparents seek custody of a grandchild. This is especially true when the child's physical health, or the parent-child relationship, is in jeopardy.

Grandparent Visitation Requirements and Rights

Grandparents generally have to meet certain conditions before being granted court-ordered visitation. In most states, courts must consider the marital status of the biological parents. Then, the court will evaluate the relevant factors to determine if visitation is appropriate.

Some states consider marital status only when the parents deny visitation rights to the grandparents. In other states, marital status is a factor if the grandchild has lived with the grandparents for a specific duration.

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. These relationships help children grow up to be healthy adults.

Grandparent visitation laws often expand visitation rights to other family members as well. This can include aunts, uncles, and siblings. In these situations, these laws may be third-party visitation rights or non-parent visitation rights.

In many states, grandparents have the legal right to request visitation with their grandchildren. If the parents object, the court will consider this. The court will also consider several other factors that focus on the well-being of the minor child. 

Visitation rights for non-parents are most common when a child's immediate family is no longer intact. Sometimes this means that the parents have divorced and the child would benefit from having grandparents in their life.

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.

If grandparents believe the child's safety or well-being is at risk, they may file for custody rights instead. Untreated mental illness of one of the biological parents, neglect, or the incapability of parents to raise the child could be reasons for this step.

When determining if visitation rights are appropriate, courts consider many 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 their biological parents or other family members
• Any history of physical, sexual, or emotional abuse or neglect by the nonparent
• Any other factor that the court thinks is relevant to granting or denying nonparent visitation rights

Before applying for visitation or custody of a child, it's wise to get legal advice. An experienced family law attorney can guide grandparents through the process.

Effect of Adoption on Grandparent Visitation Rights

Courts are more likely to grant non-parent visitation when the child has been adopted or is in foster care. This is because the child's biological parent's wishes are not an issue.

State statutes vary in how they treat cases where a grandchild has been adopted. In several states, adoption by anyone—including a stepparent or another grandparent—terminates the visitation rights of the grandparent.

In some states, adoption by a stepparent or another grandparent does not terminate visitation rights. But, adoption by anyone else does terminate visitation rights. In other states, adoption does not affect the visitation rights of grandparents as long as other statutory requirements are met.

Court Considerations: Grandparent Visitation and Custody

Courts will only order grandparent visitation or custody when particular conditions are met. In many instances, the required conditions for a grandparent custody action are completely different for a grandparent visitation rights action. It's important to understand the court considerations in these cases before filing a grandparent petition for visitation or custody.

The laws surrounding grandparents' visitation rights vary by state. But, they are always intended to support the best interests of the child. For instance, state laws favor grandparent custody when the custodial parent(s) are unfit to care for their child or have died.

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.

"Best Interest" Considerations for Grandparent Visitation or Custody

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 lists factors the court should consider in a visitation or custody case. Other states do not provide a list of factors in the statute. However, courts in those states typically identify factors in custody and visitation cases by interpreting the state statutes.

In every state, grandparents must prove that granting visitation to the grandchild is in the best interest of the child. Several states also require that the court consider the grandparent-child relationship. They might also consider the effect of grandparental visitation on the relationship between the parent and child. They will also consider the possibility of harm to the grandchild if visitation is not allowed.

"Best Interest" Factors

The following factors have been commonly used in many jurisdictions to determine the best interests of the child involved in the custody or visitation dispute:

• The needs and the welfare of the child
• The capability of the parents or grandparents to take care 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 themselves
• 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)
• Any evidence of mental illness of the grandparent(s)

Ultimately, the court will prioritize the safety and well-being of the child. If a party shows parental unfitness, the court may grant visitation rights or decide the grandparent is best suited to take custody of a child.

Can Other Non-Parents Get Custody or Visitation Rights?

Yes. In certain situations, non-parents may be able to seek custody or visitation rights of a child. This can include stepparents or other family members with a close relationship with the child. The legal rights of non-parents vary by state.

To seek custody or visitation rights, non-parents may need to demonstrate, among other things, they have a substantial relationship with the child. They also must prove their involvement in the child's life is in their best interests.

Involving Courts in Grandparent Custody and Visitation vs. Mediation

It's usually best to resolve grandparenting time problems amicably instead of through the courts. A parent struggling to manage parenting duties may be open to help from grandparents.

If not, 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.

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

Federal and state laws are beginning to recognize the important role grandparents can play in a child's life. But, these rights—and the process used to exercise them—can differ by state. Thankfully, a child custody attorney can advise you on the laws in your state and advocate for your interests.

An attorney can advise you about your legal rights as a grandparent and even help you get custody of your grandchild if needed. They can help resolve custody disputes and represent you in family court. Attorneys can also help with visitation cases.

Many law offices offer free consultations. Contact a local family law attorney today to learn how they can support you.