Grandparents' rights to their grandchildren fall into two categories---custody or visitation. These cases often arise in the context of family acrimony or crisis and require grandparents to go to court to determine their rights. Grandparents seeking custody or visitation with their grandchildren over the objection of one or both parents have an uphill battle. Courts have significantly curtailed grandparents' rights to their grandchildren.
Child's Best Interest
Questions of a child's best interests are central to decisions about grandparent custody or visitation. All states consider the best interests of the child with reference to factors either provided in the state statute or case law. These factors, while not exactly mirrored in all states' requirements, generally include an assessment of:
-- The child's safety, physical and emotional needs, as well as preferences (if an older child)
-- The parent's preferences, a history of drug use or child abuse
-- The grandparents' capability to meet the child's needs, the nature of their relationship with the grandchild, and a history of drug use or child abuse.
Custody
Parents sometimes appoint grandparents as legal custodians over their children in situations, perhaps, where there is a military deployment or a parent is incarcerated. When grandparents go to court to gain custody, however, it may be in the context of parental death or a determination of parental unfitness. To gain custody grandparents must demonstrate that it is in the best interests of the child and, generally, that the grandparents have a relationship with the child and are well equipped to parent.
Visitation
Most legal battles involving grandparent rights are about visitation. Claiming grandparent visitation rights usually arises when parents are divorcing or one parent has died. Sometimes, seeking visitation is in the context of an estrangement from a son or daughter. However, grandparents, even those who have had very close contact with their grandchildren, have no constitutional right of visitation. Only rarely will courts override parental preferences for their children.
All 50 states and the District of Columbia have laws on the circumstances and factors important when considering grandparents' visitation rights. Although there is considerable variability, all require a showing that contact with grandparents is in the child's best interest. Grandparents interested in pursuing visitation or custody of grandchildren should review the laws in the state where the children reside.
Visitation and the Supreme Court
Recent court decisions have reversed a 30-year trend of expanding grandparents' rights. In 2000, the U.S. Supreme Court in Troxell v. Granville ruled a Washington state statue granting broad grandparent (and other third-party) rights unconstitutionally curtailed parental rights. The court found that "fit" parents are presumed to act in their children's best interests and a state should not "inject itself into the private realm of the family" to undermine parental decisions about grandparent visitation.
State Law
After Troxell, some state courts ruled their visitation statutes unconstitutional and many rewrote them limiting grandparents' visitation rights. Most now will consider grandparent visitation only in the context of significant family upheavals, such as divorce or death, effectively blocking an override of parental decisions about visitation in intact families. In addition, statutes often require "clear and convincing" evidence---a very high standard of proof--that grandparent visitation is in a child's best interest.
In 2008, the Maryland Court of Appeals refused to substitute its judgment of a child's best interest for that of the parents. In Koshko v. Haining, the court found that in spite of a particularly long-term and close grandparent/grandchild relationship that the parents had a constitutional interest in "the care, custody and control" of their children and, presumably, acted in the child's best interests. Under Koshko, to override parental decisions about grandparents' visitation requires showing either that parents are unfit or an (unspecified) exceptional circumstance.
Conclusion
Grandparents' rights to custody or visitation are limited and vary by state. Although Koshko is a Maryland case, other states have implemented high thresholds as well. Some require showing that blocking grandparent visitation will harm the child.
See Resources for overviews of state laws compiled by the American Bar Association or Findlaw.com. In addition, the AARP Foundation's Grandparenting Program and its Grandcare Support Locator provide grandparents with access to local resources.
