{"id":351655,"date":"2016-04-04T11:02:29","date_gmt":"2016-04-04T16:02:29","guid":{"rendered":"https:\/\/content.findlaw-admin.com\/ability-law\/family\/child-custody\/requirements-for-awarding-grandparent-visitation-and-custody.html"},"modified":"2023-05-29T09:56:20","modified_gmt":"2023-05-29T14:56:20","slug":"requirements-for-awarding-grandparent-visitation-and-custody","status":"publish","type":"page","link":"https:\/\/www.findlaw.com\/family\/child-custody\/requirements-for-awarding-grandparent-visitation-and-custody.html","title":{"rendered":"Grandparent Rights: Visitation vs. Custody"},"content":{"rendered":"\n
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Grandparent Rights: Visitation vs. Custody<\/h1>\n
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\n By Jade Yeban, Esq.<\/a> | Legally reviewed by Rhonda Earhart, Esq.<\/a>\n | Last reviewed\n
\n \n <\/i>\n Legally Reviewed\n <\/summary>\n\n
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This article has been written and reviewed for legal accuracy, clarity, and style by FindLaw\u2019s team of legal writers and attorneys<\/a> and in accordance with our editorial standards<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n\n

\n \n <\/i>\n Fact-Checked\n <\/summary>\n\n
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The last updated date refers to the last time this article was reviewed by FindLaw or one of our contributing authors<\/a>. We make every effort to keep our articles updated. For information regarding a specific legal issue affecting you, please contact an attorney in your area<\/a>.<\/em><\/p>\n\n <\/div>\n <\/details>\n<\/section>\n

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All states recognize grandparent visitation rights, which ensure children can benefit from a relationship with their grandparents. While visitation allows grandparents to spend time with their grandchildren, these rights are distinct from grandparent custody. Custody involves taking on full legal responsibility for a child\u2019s care. <\/p>\n\n <\/div>\n\n

Grandparents may seek custody instead of visitation when the child\u2019s parents cannot provide proper care.<\/p>\r\n

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.<\/p>\r\n

Recognition of grandparents’ rights<\/a> by state legislatures is a fairly recent trend. Most statutes granting these rights have been in effect for less than 40 years.<\/p>\r\n

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<\/a>.<\/p>\r\n

Grandparents’ Rights Generally<\/h2>\r\n

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<\/a> and custody of the child.<\/p>\r\n

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<\/a>.<\/p>\r\n

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.<\/p>\r\n

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<\/a>. But, the constitutional right of parents to make decisions is prioritized.<\/p>\r\n

Grandparents’ Rights Under Federal Law<\/h2>\r\n

The United States Supreme Court<\/a> 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.<\/p>\r\n

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.<\/p>\r\n

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

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<\/a> from courts in other states.<\/p>\r\n

Constitutionality of State Statutes<\/h2>\r\n

The case of Troxel v. Granville<\/i><\/a> (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.<\/p>\r\n

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.<\/p>\r\n

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<\/a>.<\/p>\r\n

Grandparent Custody Requirements and Rights<\/h2>\r\n

Statutory provisions for child custody<\/a> are usually less specific than grandparent visitation. First, courts must consider the parent-child relationship with each parent.<\/p>\r\n

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<\/a> first. Ultimately, the court prioritizes the child\u2019s safety and well-being in child custody cases.<\/p>\r\n

How Courts Make Custody Decisions<\/h3>\r\n

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.<\/p>\r\n

If the court finds one parent is unfit, they might terminate their parental rights<\/a>. This typically only happens when:<\/p>\r\n