Grandparent's Rights
| Author | Jeffrey Wilson |
| Pages | 797-804 |
Page 797
Grandparents in every state in the United States have rights, in some circumstances, to be awarded custody of their grandchildren or to be awarded court-mandated visitation with their grandchildren. Grandparents' rights are not constitutional in nature, nor did they exist at common law. Recognition of grandparents' rights by state legislatures is a fairly recent trend, and most of the statutes have been in effect for less than 40 years.
Federal legislation may affect grandparents' rights, though these rights are based primarily on state law. Congress passed the Parental Kidnapping Prevention Act in 1980, which requires that each state give full faith and credit to 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 have adopted a version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA, previously the Uniform Child Custody Jurisdiction Act), which requires courts in the state where a child resides to recognize and enforce valid child custody orders from another state. Though the UCCJEA is not a federal statute, the provisions of this uniform law as adopted in each state are similar.
Some courts have determined that state statutes providing visitation to grandparents are unconstitutional. The United States Supreme Court in the case of Troxel v. Granville (2000) determined that the Washington visitation statute violated the due process rights of parents to raise their children. This case and similar decisions by state courts caused several state legislatures to consider bills that would modify or completely revise the visitation rights in those states. Most state laws related to grandparent rights, however, have survived intact. Nevertheless, grandparents who seek to attain visitation rights should check the current status of state legislation in their respective states.
Courts grant visitation or custody to grandparents only when certain conditions provided in state statutes are met. Conditions for a grandparent to attain custody differ from those conditions required for vis-
Page 798
itation rights. A grandparent should be familiar with the conditions for either custody or visitation before determining whether to file a petition to request either from a court of law.
Courts in every jurisdiction must consider the "best interest of the child" when granting custody or visitation rights to a grandparent. In some states, the relevant statute provides a list of factors the court should considered when determining a child's best interests. Other states do not provide factors in the statute, but courts in those states typically identify factors in custody and visitation cases interpreting the state statutes.
The following factors in determining the best interest of the child are among those included in state statutes and case law:
The needs of the child, including considerations of physical and emotional health of the child, the safety of the child, and the welfare of the child
The capability of the parents and/or grandparents to meet the needs of the child
The wishes of the parent(s) and the grandparent(s)
The wishes of the child, if the child is capable of making decisions for himself or herself
The strength of the relationship between the grandparent(s) and grandchild
The length of the relationship between the grandparent(s) and grandchild
Evidence of abuse or neglect by the parent(s) or grandparent(s)
Evidence of substance abuse by the parent(s) or grandparent(s)
The child's adjustment to the home, school, or community
The ability of the parent(s) or grandparent(s) to provide love, affection, and contact with the child
The distance between the child and the parent(s) or grandparent(s)
Statutory provisions for child custody (termed "conservatorship" in a few states) are usually less specific than the statutes regarding grandparent visitation. Courts must first consider the relationship of the parent or parents with the child before considering whether granting custody to grandparent(s) is appropriate. Several states specifically include consideration of grandparents as custodians if both parents are deceased. If either or both parents are alive, courts in most states will presume that the parent of the child should retain custody. Grandparents must generally prove the parent(s) unfit in order to overcome the judicial presumption in favor of the parent. Even if the relationship between the grandparent and grandchild is strong, it is very difficult for a grandparent to attain custody of a grandchild against the wishes of the parent or parents.
State statutes providing visitation to grandparents generally require that a number of conditions occur before visitation rights can be granted. The marital status of the parents must be considered in a majority of states before a court will evaluate the relevant factors to determine if visitation is appropriate. In some of these states, the parents' marital status is considered only if the grandparent or grandparents have been denied visitation by the parents. In other states, marital status is considered only if the grandchild resided with the grandparents for a certain length of time.
A minority of states require that at least one parent is deceased before a court can award visitation to the parent of the deceased parent of the child. For example, a maternal grandparent in one of these states may be awarded visitation only if the mother of the child is deceased.
State statutes vary in their treatment of cases in which a grandchild has been adopted. In several states, adoption by anyone, including a stepparent or another grandparent, terminates the visitation rights of the grandparent. In some states, adoption by a stepparent or another grandparent does not terminate visitation rights, but adoption by anyone else does terminate these rights. In other states, adoption has no effect on the visitation rights of grandparents, so long as other statutory requirements are met.
Once the statutory conditions for visitation are met, grandparents must establish the factors that courts may or must consider to grant visitation rights. In every state, grandparents must prove that granting visitation to the grandchild is in the best interest of the child. Several states also require that the
Page 799
court consider the prior relationship between the grandparent and the grandchild, the effect grandparental visitation will have on the relationship between the parent and child, and/or a showing of harm to the grandchild if visitation is not allowed.
Each state provides the appropriate venue which can make custody and visitation determinations in a case where all of the parties reside in the same state. Where a divorce is pending, the appropriate venue for...
To continue reading
Request your trial