Grandparent Rights in a Family Law Case Explained

By Mark M. Childress, Family Law Attorney
 

When a couple divorces or separates, the impact can significantly affect their children and even their extended family. Divorce is often a complicated and emotional situation that can sometimes lead to the grandparents feeling like they’ve lost access to their grandchildren.  

In circumstances like this, grandparents may pursue legal visitation rights for their grandchildren. This can create an emotionally charged experience, as the judge must carefully balance parental rights and the child's well-being against the grandparents' rights.  

Currently, all 50 states have enacted "grandparent visitation" statutes. However, these statutes are significantly different in different states. In this blog post, we will explore what grandparent rights are, when they apply, and how you can invoke them. 
 

What are grandparent rights? 

Grandparent rights refer to the legal rights of grandparents to have access to and maintain a relationship with their grandchildren. These rights can arise in situations where the parents of the children divorce, separate, pass away, or are involved in a child custody case. Although grandparent rights do not automatically apply in all situations, grandparents may have the right to petition the court depending on the state and circumstances. Below are various circumstances that could allow grandparents to obtain custody or visitation rights: 

• Death of one or both parents 
• Child neglect 
• Frequent drug and alcohol use 
• The parents are separated or divorced 
• One or both parents are incarcerated 
• Grandparents are listed as guardians in parents’ wills 
• The grandchildren lived with the grandparents for an extended period 

What are some limitations to grandparent rights? 

Grandparents play an important role in the lives of their grandchildren by providing love, comfort, and guidance when needed. However, there are times when parents or other guardians may prevent grandparents from having access to their grandchildren. As a result, the growing movement to establish legal rights for grandparents has emerged in response to the need for recognition and protection of familial relationships. However, some limitations and obstacles make it difficult for grandparents to assert these rights. One particular obstacle was shown the case of Troxel v. Granville, which addressed the issue of grandparent visitation rights.  

In Troxel v. Granville, the U.S. Supreme Court deliberated on a Washington state law granting any person the right to request visitation with a child at any time, even if a fit parent objects. This case entailed a conflict between the mother of two children and the paternal grandparents; the mother's visitation with the children was restricted after their father's passing. In a majority decision, the Supreme Court ruled that this Washington state law was unconstitutional and infringed upon the fundamental rights of a parent to make decisions concerning the care, custody, and control of their children. With this ruling, the Supreme Court proclaimed that fit parents have a constitutional right to make decisions regarding their children’s upbringing; which includes the right to determine who has access to them. Although Troxel v. Granville didn’t eliminate grandparent visitation rights, it imposed significant limitations on a court's ability to override fit parents' decisions and grant grandparent visitation. 

Another limitation to grandparent rights is the challenging burden of proof. If grandparents want to obtain custody or visitation rights, they must show that it is in the best interest of the child and that they have a close relationship with the child. Proving these factors can be difficult, especially if the parents or guardians are hostile or uncooperative. Additionally, grandparents may encounter the burden of proof if they need to demonstrate parental unfitness or significant changes in circumstances. 

Given the existing limitations to grandparent rights, it is important for grandparents to develop a strategic legal approach. An experienced family law attorney can help grandparents navigate their state's specific laws, understand the relevant factors courts consider, and develop a detailed plan to secure visitation or custody. This may involve collecting evidence, preparing witnesses, and making legal arguments that effectively demonstrate the best interests of the child. 
 

How can you invoke grandparent rights? 

Taking legal action through the family court system is typically the best way to invoke grandparent rights. The exact process and requirements for this vary depending on the jurisdiction. Here are some general steps you may need to take: 

1. Research local laws: Familiarize yourself with the laws and regulations about grandparent rights in your jurisdiction. This could involve consulting the family law statutes or seeking guidance from a family law attorney. 

2. Understand the requirements: Determine the specific requirements for invoking grandparent rights in your jurisdiction. This may include demonstrating the existence of a significant grandparent-grandchild relationship, showing that visitation or custody is in the best interests of the child, and meeting any procedural or documentation requirements. 

3. Consult with an attorney: It is highly recommended to consult with a family law attorney who specializes in your jurisdiction. They can provide personalized advice, guide you through the legal process, and help you understand your rights and options. 

4. Mediation or negotiation: In some jurisdictions, before proceeding to court, you may be required or encouraged to attempt mediation or negotiation with the child's parents or legal guardians. This is an opportunity to reach an agreement on visitation or custody rights outside of court. 

5. File a petition: If mediation or negotiation is unsuccessful or not required, you may need to file a petition with the family court to request visitation or custody rights. The petition should outline the reasons why visitation or custody is in the best interests of the child and provide supporting evidence. 

6. Attend court hearings: After filing the petition, you may need to attend court hearings where both parties present their arguments and evidence. The court will consider the best interests of the child when making a decision. 

7. Follow court orders: If the court grants visitation or custody rights, it is important to comply with any court-ordered terms and conditions. Failure to do so may have legal consequences. 

It’s important to remember that the process and requirements for invoking grandparent rights can vary depending on your jurisdiction. Consulting with a family law attorney will provide the most accurate and relevant guidance for your specific situation. 

Why grandparents should stay informed on their rights 

No matter what the situation may be, it’s crucial for grandparents to remember they have rights and can use them as necessary to protect their relationships with their grandchildren. The best way grandparents can accomplish this is by seeking legal counsel, staying informed about any changes in state laws or court orders, and understanding their rights under those regulations. With the right knowledge and support, grandparents can make sure that they remain an important part of their grandchildren's lives for many years to come.