Grandparents’ Visitation Rights In A Divorce

Grandparents’ Visitation Rights In A Divorce

Father and Son2 199x300 Grandparents Visitation Rights In A DivorceAll states have some type of “grandparent visitation” laws creating a legal right for grandparents to maintain a relationship with their grandchildren even after the death or divorce of their child who was the parent of the grandchildren.

Approximately 20 states have what are called “restrictive” visitation statutes. These statutes grant grandparents the right to request a court to order visitation only if the child’s parents are divorcing or if one or both parents have died. In these states the parents may prevent grandparent visitation if the parents agree even if the parents are divorced.

The remaining states have more permissive grandparents’ visitation laws. The more permissive laws allow courts to consider a grandparent’s visitation request without the death of a parent or the dissolution of the family. The court will grant a grandparent’s visitation order so long as the visitation is in the best interests of the child.

Grandparents’ visitation statutes have been challenged in the courts by parents who argue that the laws infringe on the parents’ rights to raise their children as they see fit. Courts have made contradictory rulings.

The U.S. Supreme Court Decision on Washington State’s Permissive Grandparent Visitation Statute

In 2000, the U.S. Supreme Court heard the case of Troxel vs. Granville reviewing a state court decision striking down Washington’s permissive visitation statute on the grounds it interfered with the parent’s right to raise their children.

The Supreme Court agreed with the state court that parents have a fundamental right to make decisions about raising their children, but it disagreed with the state court’s findings that the visitation statute was unconstitutional and interfered with a parents right to make decisions about how their children are raised.

Supreme Court did find the lower court applied the statute incorrectly, when the court presumed that the grandparents’ request for additional visitation was in the children’s best interests, rather than presuming that the parent was acting in the best interests of her children in refusing the grandparents more than brief visits. The Supreme Court found the court’s requirement that the parent overcome a presumption that the grandparents’ visitation was in the children’s best interest did not adequately protect a parent’s fundamental right to make decisions for her children.

Following this decision many states have amended their grandparent visitation laws to be consistent with the ruling. The amended statutes clearly states the court’s presumption of what is in the child’s best interest should be in the parents’ favor.

What to Do If You Are a Grandparent Seeking Visitation

Learn as much as you can about your rights and try to choose the path that will put the least stress on family relationships:

  • First of all research your state’s statute on grandparent visitation rights.
  • Litigation however should always be a last resort. It is expensive and emotionally difficult for the children as well as the parties involved in the visitation battle.
  • Consider mediation with the children’s parents as a constructive alternative. A professional mediator may be able to help you reach a legally binding visitation agreement that all parties can agree with. Many states will require the parties to participate in a mediation session before hearing a visitation request.

More information on this topic can be found on this resource page from DivorceSource: Grandparents’ visitation rights and child custody law.

One Response to “Grandparents’ Visitation Rights In A Divorce”

  1. Sharon J. says:

    I have a question. Can A grandparent get custody rights if the child parent is deceased. For example, my son is deceased and his child lives with either the mother or grandmother, I want to pursue his parental rights as well as vistation rights. How does this situation works?

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