March 22, 2018

Q. I am getting divorced and my ex-spouse’s parents say they want formal visitation rights with our children. Do I have to allow this?

A. Not necessarily. Under the law, it is presumed that whatever parents’ decide about grandparents’ visitation is in the best interests of their children. Consequently, in order to obtain legal visitation, grandparents must show that it is in the best interests of a child.

How the Supreme Court Ruled

Grandparent rights were addressed in a U.S. Supreme Court case decided in 2000.

Facts of the case. Jenifer and Gary Troxel petitioned for the right to visit their deceased son’s daughters. The couple and the children lived in Washington state.

The mother, Tommie Granville, did not oppose all visitation but objected to the amount sought by the grandparents. (Granville was never married to the Troxel’s son.)

Washington state law provides: “Any person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may serve the best interest of the child whether or not there has been any change of circumstances.”

At trial, the Troxels requested two weekends of overnight visits per month and two weeks of visitation each summer. Granville, who had remarried and had six stepchildren with her new husband, asked the court to order one day of visitation per month with no overnight stays.

There were no findings or allegations that Granville was an unfit parent.

In 1995, the state court issued a ruling allowing one weekend visit per month, one week during the summer, and four hours on both of the grandparents’ birthdays. The mother appealed. The State Court of Appeals dismissed the grandparents’ petition

The U.S. Supreme Court described the Washington non-parental visitation law as “breathtakingly broad.” The order to allow visits “was an unconstitutional infringement on Granville’s fundamental right to make decisions concerning the care, custody, and control of her two daughters.”

The Court stated that state courts must apply “a presumption that fit parents act in the best interests of their children.”

All 50 states have some kind of legislation dealing with grandparent visitation rights but the laws vary widely.

  • Some states have restrictive visitation laws that only allow grandparents to seek visitation after obtaining a court order and only if the child’s parents are divorced or if one parent is dead. In these states, grandparents may have no rights if the family is intact (the parents are married).
  • There may be different rules if the parents never married. Other states have more permissive visitation statutes, letting grandparents petition for visitation even when both parents are alive and married.
  • In some states, if an ex-son-in-law or ex-daughter-in-law gets remarried and a new spouse adopts the children, grandparent rights may be terminated.

In all cases, courts examine the best interests of the children. Consult with your attorney about the laws in your state.

Keep in mind that if a custodial parent moves from one state to another after visitation rights have been awarded, it may be more difficult for grandparents to visit, but they still have rights.

The Visitation Rights Enforcement Act, signed into law in 1998, states that grandparents with legal visitation rights in one state can exercise them in other states. In essence, state courts must respect the original state’s visitation rights. This federal law doesn’t establish grandparent visitation rights. That must happen in a state court.

The procedures for determining visitation rights stem from the landmark Supreme Court case of Troxel v. Granville, (see right-hand box), wherein the Court held, in part, that the parents have a fundamental right to make decisions for their children, yet at the same time upholding a state’s permissive visitation statute for grandparents. The court held that the presumption of what is in the best interest of the children should be in the parents’ favor.

Depending on the state, grandparents may not be able to file for visitation rights while the grandchild’s parents are married. But there are exceptions, such as:

1. The parents are living separately.

2. A parent’s whereabouts are unknown (and have been for at least a month).

3. One of the parents joins the grandparent’s petition for visitation.

4. The child does not live with either of his or her parents.Also, in many jurisdictions that allow for reasonable visitation with a grandchild, the court has to:

  • Find that there was a pre-existing relationship between grandparent and grandchild that has “engendered a bond.” In other words, there is such a bond between the grandparent and the grandchild that visitation is in best interests of the child.
  • Balance the best interest of the child in having visitation with a grandparent with the rights of the parents to make decisions about their child.

If a grandparent has visitation through the courts, and things change and none of the exceptions apply any longer, one or both parents may be able to ask the court to end the grandparent’s visitation and the court must then end the grandparent’s visitation rights at that time.

If you’re having problems with grandparent visitation issues, consider the following:

Consider trying to keep the lines of communication open. Parents and grandparents may eventually realize that it is best for their children to keep grandparents in their lives.

Discuss a visitation schedule in the divorce settlement that works for you. If the parents are provided with visits by the court, it will be more beneficial to have a say in the schedule, rather than allow the court to set it.

Consider family counseling and/or mediation. Counseling can help get to the bottom of the difficulties without involving the grandchildren in a bitter battle. With mediation, disputing parties try to hammer out an agreement that suits everyone.Keep in mind that, if possible, it may be best for you and your family to try to resolve these issues out of court. Speak to your attorney about these issues to determine the best strategy for you to take.

© 2018