The laws of the state in which a child resides ultimately determine whether the grandparents have a legal right to visitation. The status of state laws affecting visitation rights continues to shift, according to the advocacy group The National Coalition of Grandparents (NCG). Grandparents need to confer with an attorney to determine their specific rights. There are common criteria shared among most states, according to the American Bar Association (ABA) and the American Association of Retired Persons (AARP).
Best Interest Criteria
All states take the best interests of the child into primary consideration when determining grandparents' visitation rights, according to a review of case law by the Grandparents Rights Organization and NCG. Most family courts will look with favor on petitions or court-ordered mediation reports that recommend regular grandparent visitations if such visits would be best for the child.
Demonstrated Harm
When one of the parents opposes a grandparent's desire to have visitation, the opposing parent has to show the court how such visitations would harm the child. This proof of harm has to be "stout," according to Jimmy Verner, an attorney who practices as a grandparents' rights advocate in Texas.
Proof of Prior Relationship
Grandparents who want visitation usually have to demonstrate that they have already established a meaningful relationship with the child, according to the AARP/ABA/NCG case law survey. While this is not a criterion followed by all states, the majority of courts recognize this to be an important factor.
Parent/Child Effects
Some states take the possibility of a potentially harmful effect on the relationship between the child and the parent into consideration when determining grandparent visitation rights. Attorney Verner says that the proof of a negative effect has to be clear and convincing if the opposing parent is to prevail. Mere proof of inconvenience, for the parent, is rarely enough.
The Marital Status of the Parents
Most states take the marital status of the mother and father into consideration. While unmarried parents---and their parents---do not automatically lose any of their rights, courts do tend to give more weight to grandparents' claims when the parents are legally married. During a legal divorce, in most states, the courts require family mediation and the courts will work out the grandparents' visitation rights at that time.
When a Parent is Deceased
Special circumstances, and complexities, often arise when one of the parents is deceased. This situation can occur while the couple is married, or after a divorce. Once a parent has died, many questions can arise as to whether grandparents continue to have visitation rights to their grandchild. Most states turn back to the first criterion---the best interests of the child---as a touchstone in determining whether or not the grandparents continue to have rights to visitation.
Adoption by Stepparents
When a stepparent legally adopts a child, and then divorces the child's birth parent, or dies, issues that are even more complex can surface. Courts continue to struggle with the question of whether the parents of the stepparent have equal rights to an adopted stepchild, says Verner and the NCG. Most states have struggled with the question of whether legal rights to grandparent visitation should ever terminate, and with mixed results.
References
- The Foundation for Grandparenting: Grandparents Legal Section
- AARP: Grandparents' Visitation Rights
- The Grandfamilies State Law and Policy Resource Center
- "Grandparents' Rights: What Every Grandparent Needs to Know"; Patricia Slorah; 2003
- "Grandparents Rights, 4E"; Traci Truly; 2005
