Most grandparents adore their grandchildren and look forward to spending time with them as often as possible. They may even feel that they get to spend time with their grandchildren on a regular basis. After all, these are the children of their own children. Some might see time with their grandchildren as a logical outcome of the time they spent in raising their own children.
But does the law protect a grandparent’s right to visit with their grandchildren? The answer is yes… and no. All 50 states have some laws on the books about grandparent visitation rights, but generally, grandparents who are not legal guardians have no guaranteed right to visitation with their grandchildren.
They can ask for it, but whether or not a court will grant it depends on several factors. This includes the laws in their state, the relationship between the grandparents and the grandchild, the relationship between the grandparents and the parents, and potentially other factors as well. Take a look at what you need to know about how grandparent visitation rights work.
Differences in State Law
Like other aspects of family law, grandparents’ rights are something that isn’t in the Constitution. So, there isn’t any one particular federal law governing the issue. That means that it’s up to each state to decide how to handle grandparents who are asking for visitation. And different states look at the issue very differently.
For example, some states, like Arizona and California, don’t allow grandparents to petition for visitation if the children are part of intact families – that is, if both parents of the children are married to each other. Grandparents can only petition for visitation if the parents do not marry or if the parents are divorced. Florida is even more restrictive – grandparents in that state may only petition for visitation rights if the child’s parents are deceased, missing, or in a persistent vegetative state or if one parent meets one of those qualifications and the other parent has been convicted of a felony or violent offense.
Other states have less restrictive rules. Delaware, for instance, allows any non-parent relative to petition for visitation, though grandparents who decide to do this will then have to prove that they had a previous substantive relationship with the child. And if the parents refuse to consent to the visitation, they’ll also have to show that the child is neglected or abused in some way.
Or that the parents’ objections to their visitation are unreasonable. And in Kentucky, grandparents can be awarded visitation rights as long as they can show that the visitation is in the child’s best interests. The best interests of the child or children are considered in grandparent visitation cases in any state. But most add other stipulations as well.
What Does “Best Interests of the Child” Mean in Grandparent Visitation Cases?
Whether you’re a grandparent considering petitioning for visitation or a parent concerned about a grandparent’s petition for visitation, you may be wondering what the “best interest of the child” standard means in your case. “Best interest of the child” is difficult to define, but some factors to consider include:
Maintaining a connection with extended family
Grandparents can have a close relationship to their grandchild. A court might then see it as detrimental to the child to cut those grandparents out of the child’s life entirely.
The safety and health of the child
A court will consider both the child’s home environment and the environment that the grandparents would provide during visitation. Sometimes, even if a parent is not explicitly unfit, there may be factors such as financial instability or a history of drug use or mental illness that some courts might consider a good enough reason for the child to have regular contact with a relative, such as a grandparent, who can assess whether the child is being kept safe and provided for properly.
This can be important if the grandparent has ever had legal guardianship or custody of the child in the past. On the other hand, the grandparent’s conduct or living situation can be questionable. For example, if their housing is unsafe or if they smoke or drink alcohol in the presence of the children. Then a judge might deny visitation based on those factors.
The parent-child bond
A family court will also have to consider whether allowing grandparent visitation undermines the authority of the parent. Under most circumstances, parents who have not been deemed unfit for some reason are presumed to be making decisions in their child’s best interests. To order visitation after a parent has denied that visitation could introduce conflict into the home that wasn’t there previously.
Effects of Grandparent Visitation Lawsuits on Children
Both grandparents who want visitation rights and parents who refuse to allow grandparent visitation have reason to be concerned about the effect a grandparent visitation lawsuit would have on their children.
Grandparents whose children and in-laws have refused to allow them to visit with their grandchildren may be concerned that their grandchildren will believe that their grandparents abandoned them or had no interest in them. And that is a valid concern – grandparent/grandchild relationships can be very important to a child, and the sudden disappearance of a grandparent from a child’s life could very well be distressing. A visitation lawsuit, even if unsuccessful, would serve a purpose. It ensures that the child is aware that their grandparents do want to spend time with them. This may motivate some grandparents to go ahead with the lawsuit.
The Negative Side of a Lawsuit
However, there’s another side to the story. A grandparent visitation lawsuit interferes with the child’s privacy. They’ll likely have to discuss family matters with lawyers, social workers, and judges. Just as is the case when parents fight with each other over visitation, a grandparent visitation lawsuit puts the child in the middle of two or more adults who are in disagreement with each other.
This may create a real or perceived pressure on the child to choose between those adults, and may cause feelings of guilt when those children believe that they’re the cause of tension in the family. And a grandparent visitation lawsuit may disrupt a child’s home life in other ways. Such as causing a financial strain for the family. All of this suggests that grandparents should proceed with caution when deciding whether to petition for visitation. Parents should not be too hasty about cutting off a grandparent entirely when the circumstances are not extreme.
If you’re involved in a grandparent visitation rights lawsuit, using a legal resource group like National Family Solutions can help you advocate for yourself and the children involved in court without putting an undue financial strain on your family.