In recent decades the number of divorces and children born to unmarried parents has increased, and so has the number of displaced grandparents. Grandparents who wish to maintain a relationship with their grandchildren do have some legal rights, and should know the options available to them when seeking visitation or custody.
History
According to FindLaw, the rights of grandparents are not constitutional in nature. They are state-recognized rights that, as of 2010, have only evolved over the past 40 years. Federal legislation has affected grandparents' rights over time. The most notable example is the Troxel v. Granville case, in which the United States Supreme Court ruled that the Washington statute, which allowed grandparents and other parties to petition for visitation, was too broad, and infringed on the rights of parents to determine with whom their child spends time. Some states have revised their more lenient statutes in accordance with this case, but most states have not altered theirs.
State Laws
Every state allows some form of grandparent visitation, though specific state statutes vary widely. In states with the most stringent laws, grandparents can only legally petition for visitation in cases of parental divorce or death. Even under these circumstances, some states only allow grandparents to file for visitation if the parents have refused to allow the grandparents any kind of access to their grandchildren. In the most lenient states, grandparents only have to prove that visitation would not be detrimental to the child's well-being.
Types
Divorce Lawyer Source notes that, depending on individual circumstances and state laws, grandparents can petition for visitation, which means spending short, supervised periods of time with their grandchild; partial custody, which means lengthier, unsupervised visits; or full legal and/ or physical custody. Legal custody gives grandparents the right to make decisions about their grandchild's upbringing, and physical custody gives them the right to have him live with them. It is very difficult for grandparents to obtain legal or physical custody of a grandchild if one or both parents oppose it. In cases where one parent has died, the other parent gets automatic preference for custody, unless he is proven unfit.
Factors
If a grandparent has met his state's statute for eligibility, it will be up to a judge to determine whether it would be in his grandchild's best interest to grant him visitation or custody. According to FindLaw, a judge will consider his grandchild's physical and psychological health, the child's preference, the grandparent's ability to care for the child and the strength and length of their relationship. He will also study the grandparent's background for evidence of abuse or neglect.
Considerations
Engaging in a legal battle for visitation rights can be costly and time consuming, and won't improve family relations. It's in the grandparent's best interest to remain as cooperative as possible, and to try to resolve any differences outside of court. Mediation is an effective and relatively low-cost option for families who cannot come to an agreement.
Qualified legal counsel should always be sought if the grandparent has any questions about his legal rights.
