Summaries of State Law: Grandparent Visitation and Custody

Each state establishes statutes for grandparent visitation rights. These statutes determine the conditions for visitation. Judges must consider many factors to determine whether to grant visitation. They must also determine the proper venue to file a request for visitation. 

Though many state statutes are similar, state courts may apply statutory provisions differently. All statutes essentially require courts to consider the best interests of the child.

The court must decide that granting certain orders is in the child's best interests. Granting grandparents visitation or custody rights falls within this scope. It must be in the child's best interests for their grandparent to get custody rights.

Some states have ruled that certain statutes providing grandparent visitation rights are unconstitutional. They believe these rights violate either federal law or their respective state constitutions. Several states have revised the statutory visitation provisions. But the constitutionality of these statutes may still be in question.

The following is a summary of state laws on grandparent visitation and custody.

Grandparent Visitation and Custody: A Brief Overview

Grandparent visitation and custody have become important topics. These fall within the scope of family law and child custody cases. These cases are when grandparents seek visitation rights or custody of their grandchildren. It's important to understand that these cases are often complex. They involve many factors and legal obstacles to consider.

A grandparent can file a petition in family court for a visitation order. But a court order doesn't solve everything. The grandparent isn't automatically granted the right to visit. The parent can dispute the grandparent's right if they object. The court will give their opinions heavy consideration.

By law, the child's parents have the primary responsibility for their child. They have the legal right to make decisions on behalf of their child. The court will give the parents' opinion greater weight in court.

An Introduction to Grandparent Custody

Grandparent custody is different from grandparent visitation rights. Grandparent custody can come into play in certain situations. In these situations, the parents are unable or “unfit" to care for the child. Obtaining custody of a grandchild is more complicated than getting visitation rights.

As a non-parent, a grandparent must prove that the parents are unfit. Or they must prove it would be in the child's best interests to be in their custody. Paternal grandparents and maternal grandparents are on equal footing in these cases. Courts judge each situation on its individual merits.

In 2000, the U.S. Supreme Court delivered a significant ruling on grandparent rights. In Troxel v. Granville, the Court acknowledged a certain fundamental right of parents. This right is to make decisions for their children. These decisions can involve the upbringing of their children. If they have a good reason, a parent can keep their child's grandparents from seeing them.

Consider if the grandparent can show a denial of their visitation would harm the child. If they can prove this to the court, the court may favor the grandparent. This underscores that the child's well-being is paramount in these cases.

State Law Summaries of Grandparent Visitation and Custody Laws

Below is a summary of each state's grandparent visitation and custody laws.

Alabama

Under the Alabama statute, a court may grant visitation to a grandparent if visitation is in the child's best interests and one of five events has occurred:

  1. One or both parents of the child are deceased
  2. The marriage of the parents of the child has been dissolved
  3. A parent of the child has abandoned the child
  4. The child was born out of wedlock, or
  5. The child lives with both biological parents, but one or both of the parents has prevented a grandparent from visiting the child.

The state's custody statute requires courts to consider the moral character of the parents and the age and sex of the child to determine the best interests of the child.

Alaska Determination of grandparent visitation rights must be made in an action for divorce, legal separation, child placement action, or when both parents have died. Adoption cuts off the visitation rights of grandparents. This happens unless the adoption decree provides for visitation between the child and the natural relatives.
Arizona A court may award visitation rights if the child's parents' marriage has been dissolved for at least three months. The court also may grant this if the child's parents were not married when the child was born. Adoption cuts off the visitation rights of the grandparents. This is true unless the adoption is granted to a stepparent.
Arkansas

The custody statute requires that the court grant custody "without regard to the sex of the parent but solely in accordance with the welfare and best interests of the children." Conditions for grandparent visitation rights include several circumstances:

  • Where the grandchild has resided with the grandparent
  • The child's parents are divorced
  • The child is in the custody of someone other than a parent
  • The child has been born out of wedlock.
Adoption cuts off all visitation rights of the natural grandparents.
California

Conditions for grandparent visitation rights include a determination of whether:

  • A parent is deceased
  • The child's parents are divorced or separated
  • The whereabouts of one parent are unknown
  • The child is not residing with either parent
In addition to determining that visitation is in the child's best interests, the court must find that the grandparents have a pre-existing relationship with the grandchild. The court must also balance visitation with the parent's rights. If both parents agree that the court should not grant visitation to the grandchild, the court will presume that visitation is not in the child's best interests. Adoption does not automatically cut off the visitation rights of grandparents.
Colorado A court may award visitation rights if the child's parents' marriage has been terminated, legal custody of the child has been given to a third party, the child has been placed outside the home of either of the child's parents, or the grandparent is the parent of a deceased parent of the child. Adoption cuts off the visitation rights of the grandparents. This is true unless the adoption is granted to a stepparent.
Connecticut A court may award visitation rights if visitation is in the child's best interests. Adoption does not automatically cut off the visitation rights of grandparents.
Delaware A court may award visitation rights if visitation is in the child's best interests. Adoption cuts off all visitation rights of grandparents.
Florida

The Florida Supreme Court has ruled that the application of some provisions of the Florida law providing grandparental visitation is unconstitutional. Under the current statute, Florida courts may award visitation to a grandparent when visitation is in the child's best interests and:

  1. The marriage of the child's parents has been dissolved
  2. A parent has deserted a child, or
  3. The child was born out of wedlock.
Georgia

The custody statute does not list specific factors for the court to consider to determine the child's best interests. A court may award visitation rights if:

  • An action is pending where there is an issue involving the custody of a minor child
  • Divorce of the child's parents
  • Termination of a parent's rights or visitation rights
Adoption cuts off the visitation rights of the grandparents unless the adoption is granted to a stepparent or a natural relative of the child.
Hawaii

The custody statute requires courts to consider the child's best interests:

  • The child's wishes, if the child is old enough and has the capacity to reason
  • Evidence of any domestic violence
A court may award visitation rights if Hawaii is the child's home state. It must be their home state at the time visitation is requested. Visitation must also be in the best interests of the child. Adoption cuts off all visitation rights of grandparents.
Idaho A court may award visitation rights if visitation is in the child's best interests. Adoption cuts off all visitation rights of grandparents.
Illinois

In 2002, the Illinois Supreme Court made an important decision. It held the Illinois Grandparent Visitation Act violated the Illinois Constitution. A new visitation statute became effective on Jan. 1, 2005. Under the new law, a court can grant visitation to a grandparent: If visitation is in the best interests of the child and the grandparent has been unreasonably denied visitation to the child. A court may not grant visitation to a grandparent where both parents object to such visitation.

Indiana

A court may award visitation rights if:

  • Either of the child's parents is deceased
  • The child's parents' marriage has been terminated
  • The child was born out of wedlock
In addition to considering whether visitation is in the child's best interests, a grandparent must show that they have had, or attempted to have, meaningful contact with the grandchild. Adoption cuts off the visitation rights of the grandparents unless the adoption is granted to a stepparent or a natural grandparent, sibling, aunt, uncle, niece, or nephew of the child.
Iowa The custody statute requires courts to consider the best interests of the child. They must provide the "maximum continuing physical and emotional contact with both parents." On more than one occasion, the Iowa Supreme Court has ruled that the Iowa law on grandparental visitation is unconstitutional. The Iowa Legislature has not adopted an alternative law.
Kansas A court may award visitation rights in a custody order. Adoption cuts off the visitation rights of the grandparents. This is true unless the grandparent is the parent of a deceased parent and the surviving parent's spouse adopts the child.
Kentucky

A court may award visitation rights if visitation would be in the child's best interests. A court may award a grandparent the same visitation rights as a parent without custody if:

  • The grandparent's child is deceased, and
  • The grandparent has provided child support to the grandchild.
Adoption cuts off grandparents' visitation rights unless the adoption is granted to a stepparent and the grandparent's child has not had their parental rights terminated.
Louisiana

A court may award visitation rights if:

  • The child's parent is deceased or declared legally incompetent
  • A grandparent is the parent of the deceased or an incompetent parent to the grandchild, and
  • Visitation is in the child's best interest
Adoption cuts off the visitation rights of grandparents except in circumstances where the grandparents are the parents of a deceased party to the marriage or the parents of a party who has forfeited their rights to object to the child's adoption.
Maine A court may award visitation rights if:
  • At least one of the child's parents is deceased
  • Visitation is in the child's best interests, and
  • Visitation will not interfere significantly with the relationship between the parent and the child.
Adoption cuts off all visitation rights of grandparents.
Maryland The custody statute does not list factors for determining the child's best interests. A court may award visitation rights if visitation is in the child's best interests. The factors for determining these interests have been set forth in case law. Adoption cuts off all visitation rights of grandparents.
Massachusetts

The custody statute does not list factors for determining the child's best interests. A court may award visitation rights if:

  • The child's parent's marriage is terminated
  • The parents are separated
  • One of the parents is deceased, or
  • The child was born out of wedlock, and
  • Paternity has been established.
Adoption cuts off the visitation rights of grandparents. This is true unless the adoption is granted to a step-parent.
Michigan A court may award visitation rights if:
  • The child's parent's marriage is terminated
  • The parents separate, or
  • Custody of the child is given to a third party other than the child's parents.
Adoption cuts off grandparents' visitation rights. This is true unless the adoption is granted to a stepparent.
Minnesota A court may award visitation rights if:
  • The child's parent is deceased, and
  • The grandparents are the parents of the deceased parent, or
  • During or after divorce, custody, separation, annulment, or paternity proceedings.
Adoption cuts off grandparents' visitation rights. This is true unless the adoption is granted to a stepparent.
Mississippi

The custody statute does not list factors for determining the child's best interests. If the child is at least 12 years old, they may choose who takes custody. Conditions for grandparent visitation rights include:

  • The determination of whether one of the child's parents is deceased
  • If a parent has had their parental rights terminated
  • The relationship between the grandparent and grandchild
Adoption cuts off the visitation rights of grandparents. This is true unless the adoption is granted to a stepparent or a blood relative.
Missouri

A court may award visitation rights if:

  • The child's parents have filed for divorce
  • One parent is deceased, and
  • The other parent has unreasonably denied visitation to the grandparent, or
  • When a parent or parents unreasonably deny visitation to a grandparent for more than 90 days.
Adoption cuts off the visitation rights of grandparents. This is true unless adoption is granted to:
  • A stepparent
  • Another grandparent
  • Or a blood relative.
Montana A court may award visitation rights if the court finds that visitation is in the child's best interests. Adoption cuts off the visitation rights of grandparents. This is unless adoption is granted to a step-parent or another grandparent.
Nebraska

A court may award visitation rights if:

  • At least one parent is deceased
  • The parents' marriage has been dissolved
  • A petition for dissolution has been filed, or
  • The child is born out of wedlock, and paternity has been established.
Grandparents must demonstrate that a beneficial relationship exists between themselves and the grandchild. They must also prove that visitation is in the child's best interests. Visitation cannot interfere with the parent-child relationship. Adoption cuts off all visitation rights of grandparents.
Nevada

A court may award visitation rights if:

  • The child's parents are deceased
  • The child's parents are divorced or separated
  • One of the child's parents has had their parental rights terminated
  • The child's parent(s) must have unreasonably restricted visitation between the grandparent and grandchild before a court may award visitation to a grandparent.
If a child's parent or parents has denied or unreasonably restricted access to a grandparent, a court will presume that visitation is not in the child's best interests. Adoption cuts off all rights of grandparents. This is true unless grandparents request visitation before the termination of the parental rights of the child's parent(s).
New Hampshire A court may award visitation rights if:
  • The child's parents are divorced or have filed for divorce
  • One of the parents is deceased
  • One of the parents has had their parental rights terminated, or
  • The child has been born out of wedlock if the child has been legitimated.
Adoption cuts off all rights of grandparents.
New Jersey A court may grant visitation rights if visitation is in the child's best interests. Adoption cuts off the rights of grandparents unless adoption is granted to a stepparent.
New Mexico

A court may grant visitation rights if the child's parents are divorced, separated, or deceased. Visitation rights may also be granted if:

  • The child is over 6 years old
  • Has lived with the grandparent for more than six months, and
  • Was subsequently removed from the grandparent's home (if the child is under six, the residence requirement is reduced to three months).
Adoption cuts off the rights of grandparents unless adoption is granted to:
  • A stepparent
  • A relative of the child
  • A caretaker designated in a deceased parent's will, or
  • A person who sponsored the child at a baptism or confirmation.
New York

The custody statute does not provide statutory factors for determining the child's best interests. A court may grant visitation rights if at least one of the child's parents is deceased or if the court finds that equity demands intervention based on the circumstances of the case. Adoption does not automatically cut off the visitation rights of grandparents.

North Carolina

The custody statute does not provide statutory factors for determining the child's best interests. A court may grant visitation rights as part of an order determining custody of the child. Adoption cuts off the visitation rights of grandparents. This is true unless adoption is granted to a stepparent or a relative of the child. The grandparent must prove that a substantial relationship exists between the grandparent and grandchild.

North Dakota

A court must grant visitation rights unless the court determines that visitation would not be in the child's best interests. The amount of contact between the child, the grandparent, and the parent are factors to be considered when determining the child's best interests. Adoption cuts off the rights of grandparents unless visitation was granted before the adoption.

Ohio

A court may grant visitation rights if the child's parents are:

  • Deceased
  • Divorced
  • Separated
  • Were parties to a suit for annulment or child support, or
  • Were never married to one another.
Grandparents must show they have an interest in the child's welfare. Adoption cuts off grandparents' visitation rights. This is true unless adoption is granted to a stepparent.
Oklahoma

A court may grant visitation rights if visitation is in the child's best interests. The statute provides special rules when the child is born out of wedlock. Adoption cuts off grandparents' visitation rights unless they can show a previous relationship between them and the grandchild. They must also prove that visitation is in the child's best interests.

Oregon Determination of grandparent visitation rights includes consideration of the relationship between the grandparent and grandchild. It also includes the relationship between the parent and child. Adoption cuts off all visitation rights of grandparents.
Pennsylvania

A court may grant visitation if:

  • At least one of the child's parents is deceased
  • The parents are divorced or separated for more than six months, or
  • The child has lived with the grandparent for over 12 months.
Determination of grandparent visitation must include:
  • Consideration of the child's best interests
  • Potential interference with the parent-child relationship, and
  • The contact between the grandparent and grandchild.
Adoption cuts off visitation rights of grandparents unless adoption is granted to a stepparent or grandparent.
Rhode Island

The custody statute does not provide statutory factors for determining the child's best interests. Determination of grandparent visitation must include consideration of the relationship between the grandparent and grandchild. This includes the child's best interests. Courts may also grant visitation if the child's parents are divorced, or the parent who is the child of the grandparent is deceased. Adoption cuts off all visitation rights.

South Carolina A court may grant visitation if:
  • One parent is deceased or
  • The parents are divorced or separated.
The court must consider the relationship between the grandparent and the child, as well as the parent and the child. Adoption cuts off all visitation rights of grandparents.
South Dakota The custody statute does not provide statutory factors for a court to determine proper custody. A court may grant visitation if one parent is deceased or the parents are divorced or separated. Adoption cuts off the visitation rights of grandparents. This is true unless adoption is granted to a step-parent or grandparent of the child.
Tennessee

Tennessee courts held that the previous version of the grandparent visitation statute was unconstitutional. The Tennessee Legislature amended the statute to align with the state constitution. Under the revised law, a court may grant visitation rights to a grandparent only in one of the following situations:

  1. The mother or father of the child is deceased
  2. The child's parents are divorced or were never married to one another
  3. The child's mother or father has been missing for the preceding six months
  4. A court in another state has ordered grandparent visitation
  5. The child previously lived with the grandparent for 12 months or more, or
  6. The child and grandparent(s) maintained a significant relationship for 12 months.

If one of these events occurs, the court may award visitation rights if the child is in danger of substantial harm should the court deny visitation and visitation is in the child's best interests.

Texas

The custody statute does not provide statutory factors for a court to determine proper custody. Conditions for grandparent visitation rights include a determination that one of the child's parents is:

  • Deceased
  • Incompetent
  • Divorced
  • Incarcerated
  • Has had their parental rights terminated
  • The child has been abused or neglected
  • The child has been adjudicated a delinquent or in need of supervision or
  • The child has lived with the grandparent for at least six months within 24 months of filing the petition for visitation
Adoption cuts off the visitation rights of the grandparent unless the adoption is granted to a stepparent.
Utah Conditions for grandparent visitation rights include whether a parent is:
  • Deceased
  • Divorced or
  • Separated.
Adoption cuts off all visitation rights of grandparents.
Vermont Conditions for grandparent visitation rights include consideration of whether a parent is:
  • Deceased
  • Incompetent or
  • Abandons the child.
Adoption cuts off all visitation rights of grandparents unless the adoption is granted to a stepparent or a relative of the child.
Virginia Determination of grandparent visitation is made during a suit for dissolution of the marriage of the child's parents. Adoption cuts off all visitation rights of grandparents.
Washington The United States Supreme Court case of Troxel v. Granville ruled the Washington grandparent visitation statute was unconstitutional. Although the Washington legislature subsequently amended the statute, the Washington Supreme Court 2005 struck down portions of the law.
West Virginia

The custody statute does not provide statutory factors for a court to determine custody. Conditions for grandparent visitation rights include consideration of:

  • Whether a parent is deceased
  • The child has lived with the grandparent and then was removed by a parent, or
  • In several circumstances, the grandparent has been denied visitation by a parent.
Adoption cuts off all visitation rights of grandparents.
Wisconsin Conditions for grandparent visitation rights include consideration of the relationship between the grandparent and grandchild. Visitation may also be permitted if a child's parents die. Adoption cuts off grandparents' visitation rights unless adoption is granted to a step-parent.
Wyoming The custody statute does not give statutory factors for a court to determine proper custody. Conditions for grandparent visitation rights include consideration of the child's best interests and the impairment of the rights of the parents.

Get Legal Help With Grandparent Visitation and Custody Rights

As you can see, grandparents' visitation rights laws differ from state to state. If you have any questions about grandparent visitation and custody rights and how they are enforced, a family law attorney can provide you with the best options for you and your family.

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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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