Family Law

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Grandparent Rights

The following summary provides an overview of grandparent rights to custody and visitation of grandchildren. Grandparent rights are governed primarily by state statutes and case law, and may vary significantly between states. Grandparents seeking to establish custody or visitation rights should consult the laws of their individual state before proceeding.

Grandparent Custody Rights

A grandparent seeking full care and custody of a grandchild may file a petition for custody with the court. Because most courts prefer that children live with their parents, a grandparent's right to obtain custody is typically limited to the following situations:

  • The child's parents are deceased.
  • The child's parents have been deemed unfit to retain custody.
  • The child's parents consent to grandparent custody.
  • The child has lived with a grandparent or grandparents for a year or more.

In all child custody cases, courts attempt to determine what custody arrangement is best for the child. The court may consider the child's degree of contact with a grandparent before the custody petition is filed, the child's relationship with other blood relatives, and the grandparent's age, health and financial ability to support the child.

Grandparent Visitation Rights

Events such as divorce or separation may divide a family, and may cause a parent to limit a grandparent's contact with his or her grandchildren. Grandparents seeking to maintain or reestablish visitation with grandchildren are encouraged to resolve the situation without resorting to legal action. Some courts will not proceed until all non-legal options have been exhausted. Grandparents may attempt to discuss the subject of visitation with parents on their own, or they may seek the assistance of a neutral third-party mediator. If the issue remains unresolved, grandparents may petition the court to obtain a visitation order.

Visitation Orders

All states have currently enacted some form of "grandparent visitation" statute, giving grandparents the right obtain a court order to see and interact with their grandchildren. Visitation orders specify the date, time, and circumstances under which visitation must occur.

Restrictive Visitation Statutes

The scope of grandparent visitation rights varies significantly between states. Approximately 40% of states have enacted "restrictive" visitations statutes. Restrictive visitation statutes allow grandparents to obtain a visitation order only in the following situations:

  • The child's parents have divorced or separated.
  • One or both of the child's parents have died.

Even if the above requirements are met, a grandparent will only be granted visitation rights if the court finds that visitation is in the best interests of the child and that visitation does not interfere with the parent-child relationship.

Permissive Statutes

A majority of states have enacted permissive grandparent visitation statutes. Permissive visitation laws allow grandparents to obtain visitation orders so long as visitation is in the best interests of the child. Visitation is typically found to be in the child's best interests if a grandparent can show evidence of a consistent and caring relationship between grandparent and grandchild, and if the visitation does not interfere with the parent-child relationship.

Restrictive and permissive visitation statutes have been challenged in court by parents who argue that visitation orders interfere with a parent's fundamental right to make decisions for his or her children. The United States Supreme Court has upheld the constitutionality of permissive visitation laws, finding that a child's right to develop a relationship with its grandparents outweighs any burden placed on the parent's right to control the child's upbringing. (Troxel v. Granville (2000) 530 U.S. 57).