The battle for the legal rights of grandparents to visit with their grandchildren has been fought on the state level all the way to the United States Supreme Court. In 2000, the Supreme Court overturned a Washington State statute supporting grandparents' rights over the parent's wishes. The decision stated that parents have a constitutional right to decide the "care, custody and control" of their children.
Grandparents' Rights
Since the Supreme Court ruling in 2000, many states have revisited and revised statutes concerning grandparents' legal standing to sue for visitation. The rights of grandparents, especially if the parents are alive and judged fit, do not outweigh the parents' wishes.
Extraneous Circumstances
Extraneous circumstances must be present for a grandparent to sue for visitation. Grandparents may have the right to petition the court for visitation rights if the following conditions are met: The parents are legally separated or divorced; a birth parent is dead or in prison; it's in the best interest of the child; or the grandparent has been the primary caregiver for an extended period of time--generally six to 12 months.
Best Interest of the Child
Proving that the grandchild will be harmed if not allowed to visit the grandparents can be a challenge, yet that is exactly what is required in some states to sue for grandparental visitation rights. Determining whether or not it is in the best interest of the child to have visits with grandparents relies on assessing the parents' and grandparents' abilities as fit and stable guardians. Only if the parent is determined to be unfit or unstable will the decision fall on the court to determine what's in the best interest of the child and whether the grandparents meet the criteria.
State Statutes Regarding Visitation Rights
Each state has its own statutes regarding visitation rights of grandparents, and these may fall under two categories. There are "restrictive" statutes--in which case only grandparents of grandchildren who have lost one or both parents due to divorce, death or incarceration, for example, can obtain visitation rights. There are also "permissive" statues, which allow grandparents to petition for visitation regardless of the status of the parents. Requirements outlined in each state's statutes must be satisfied in order for grandparents to stand in court.
Mediation Versus Legal Action
Before deciding to take your case to court, consider mediation. Mediation involves a neutral third party professionally trained in resolving conflicts and who will help work out a compromise amongst all parties. Hiring a lawyer and accruing associated court costs can be expensive, whereas mediation costs substantially less.
