April 23rd, 2023
April 23rd, 2023
Children often form close emotional bonds with their grandparents. Families can experience rifts and divisions for many different reasons such as divorce, the death of a parent, addiction issues, or incarceration. These situations can make it difficult to preserve the relationships between grandparents and their grandchildren. In light of this reality, when these situations occur, grandparents have certain legal rights that facilitate them seeking court-mandated visitation or even custody of grandchildren. That being said, the relevant laws vary considerably state by state. For this reason, it is important to consult an attorney licensed in the state where the child lives with concerns about issues related to child custody and visitation. However, understanding one's basic rights can help ensure that a grandparent's relationship with their grandchildren does not end even if the child's relationship with the grandparent's adult child does. This guide will explore the ins and outs of grandparents' rights to visitation and custody. For more in depth information about child custody and visitation arrangements, please see the other guides on this website, such as Cataloguing Custody: Forms of Custody Arrangements and how to Use them and Who Gets the Kids: Creating and Modifying Child Custody Agreements.
Although the terms "custody" and "visitation" are often used interchangeably, they refer to two different sorts of legal rights, both concerning who has contact with children. Custody is a broad term that refers to either legal or physical custody while visitation refers to time actually spent with the child.
When parents separate or divorce, the term "custody" serves as shorthand for "who lives with and cares for the children" under the ensuing divorce agreement or child custody agreement. Custody is split into two types: physical custody and legal custody.
Physical custody is one of the most commonly understood forms of child custody. If someone has been granted physical custody of a child by a court, that person has the right to have the child live with them. A person with physical custody of a child is responsible for providing care to the child on a daily basis.
Legal custody refers to decision-making power when it comes to raising a child. This legal right encompasses making decisions related to schooling, religious education, healthcare, and other important decisions related to how a child will be reared. Legal custody can be shared between parents or given to only one parent.
In most child custody cases, legal custody is awarded to both parents unless it is shown that one parent is somehow unfit or incapable of making decisions about the child's upbringing. A history of drug abuse, domestic violence, or child neglect would play a role in this decision, which is focused on what's best for the child.
While it's possible that one parent or guardian has sole and exclusive physical custody of a child, meaning the child lives with them full-time, other parents or involved parties can have visitation rights with that child. Visitation time allows someone to see a child, spend time with them, and possibly have them spend weekends, nights, holidays, or other significant periods of time visiting and building or maintaining a relationship despite not having physical custody. A court may also order what is known as "supervised visitation" when a parent or guardian poses some sort of danger or has never developed a relationship with the child prior to this time. A person with supervised visitation can spend time with the child at a licensed facility or in the presence of a designated third-party.
Courts grant custody or visitation to grandparents only when certain conditions described in the relevant state laws are met. Conditions for a grandparent to attain custody differ from those conditions required for them to attain visitation rights. A grandparent should be familiar with the conditions for either custody or visitation before determining whether to file in court to request that those rights be granted.
Judges frequently use what is known as the "best interests of the child standard" to make decisions related to children, including those related to child custody and visitation. Maintaining a stable home environment is at the top of the judge's list in deciding what is in the child's best interest. A divorce or other fracturing of a family unit is a major disruption in a child's life and the judge will do everything possible to minimize that disruption. With younger children, this may mean awarding custody to the child's primary caregiver. With older children, this may mean giving custody to the parent or grandparent who is best able to foster continuity in education, neighborhood life, religious institutions, and peer relationships.
Many other factors are considered when determining the best interests of the child, including:
State laws that provide visitation rights to grandparents usually require that a certain number of conditions be met before these rights can be granted. The marital status of the parents is considered by the court in the majority of states before the court will evaluate the relevant factors to determine if grandparental visitation is appropriate. In some of these states, the parents' marital status is considered only if the grandparents have been denied visitation by the parents. In other states, marital status is considered only if the grandchild has resided with the grandparents for a certain length of time.
Several states require that at least one parent be deceased before the court will consider awarding visitation to the parent of the deceased parent of the child. For example, if the mother of a child passes away, the maternal grandparents could then petition the court for visitation rights. These states have what are known as "restrictive" visitation statutes.
State laws vary in their treatment of cases where a grandchild has been adopted by a third party. In several states, adoption by anyone, including a stepparent or a different grandparent, automatically terminates the visitation rights of the grandparent. In some states, adoption by a stepparent or different grandparent does not terminate visitation rights, but adoption by any other third party does terminate these rights. In other states, adoption has no effect on the grandparents' visitation rights, so long as the other legal requirements are met.
Once the legal requirements for visitation are met, grandparents must then establish the factors that the court may or must consider in order to grant visitation rights. In all states, grandparents must demonstrate that granting visitation rights to the grandchild is in the best interest of that child. Several states also require that the court consider the prior existing relationship, if any, between the grandparent and the grandchild, the effect grandparental visitation will have on the parent/child relationship, and/or a determination that harm will be caused to the grandchild if visitation is not allowed.
If a grandparent believes that their grandchild would have a better life with them than with their parents, they may be facing an uphill battle in trying to get custody of their grandchild. As a preliminary matter, most courts first consider the age, health, and financial situation of the grandparents to determine whether they are qualified to provide a stable home and properly care for their grandchild.
The laws surrounding child custody (also called "conservatorship" in several states) are usually less specific than the laws regarding grandparent visitation rights. Courts must consider the relationship of the parent or parents with the child before considering whether granting custody to grandparents is appropriate. Several states specifically require that the court consider grandparents as custodians of their grandchildren if both of the parents are deceased. If both or either of the parents are alive, courts in most states will presume that the parent of the child should get to retain custody of their child. Unless all parents who have custody agree to willingly give up their custody rights, grandparents must then address that presumption by proving that the parents are unfit. A finding of unfitness can stem from child abuse or neglect, as well as substance abuse or mental illness. When this happens, however, grandparents may still need to overcome attempts by other family members to get custody of the child. Competing claims for custody by multiple non-parents will be resolved according to what is in the best interests of the child. Even if the relationship between the grandparent and grandchild is strong and well-established, it is difficult for a grandparent to attain custody of a grandchild against the wishes of the parent or parents. A grandparent must have a very strong case to succeed in taking custody of a grandchild.
When a parent who has custody of a child dies, a grandparent may have a better chance of establishing custody. Courts still prefer to place the child with the other parent if possible unless it is not in the child's best interests. If this is not possible or not in the child's best interests, grandparents may be able to gain custody. A grandparent would have a very strong case if the custodial parent and grandchild were already living with them since courts value stability and consistency during the child's development. It can also be helpful to show that the child wants to live with the grandparent, or that the deceased custodial parent named the grandparent as the child's legal guardian in a valid last will and testament.
In every state in the United States, grandparents have rights, in some circumstances, that allow them to be awarded custody of or court-mandated visitation with their grandchildren. Though these laws are widespread, they are also relatively recent -- most of the state statutes recognizing grandparents' rights have been in place for less than 35 years.
Though these rights are mostly based on state law, there is some relevant federal legislation that may affect grandparents' rights. Congress passed the Parental Kidnapping Prevention Act in 1980. This law requires that each and every state fully recognize and enforce child custody decrees from other states. Federal legislation passed in 1998 also requires that courts in each state recognize and enforce grandparental visitation orders from courts in other states. All states in the United States have adopted some version of the Uniform Child Custody Jurisdiction and Enforcement Act (known as the "UCCJEA"), which requires courts in the state where a child lives to recognize and enforce valid child custody orders from another state that has proper jurisdiction. Though the UCCJEA is not a federal law, the provisions of this uniform law as adopted in each state are very similar.
Unfortunately, a number of courts have recently determined that state statutes providing visitation rights to grandparents are unconstitutional. Several court decisions around the country determining that state visitation laws violate the due process rights of parents to raise their children have caused state legislatures to consider bills that would modify or completely revise the visitation rights in those states. Grandparents who wish to attain visitation rights for their grandchildren should check the current status of state legislation in the state(s) where they and/or their grandchildren reside.
Familial turmoil and strife can cause longlasting damage to the relationships between grandparents and their grandchildren. However, in all states, depending on the situation, grandparents have some legal recourse that allows them to seek custody and/or visitation in the interest of preserving the grandparent/grandchild relationship.
About the Author: Malissa Durham is a Legal Templates Programmer and Attorney at Wonder.Legal and is based in the U.S.A.