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While proven to be a valuable source of love and support
to their grandchildren, grandparents do not have a guaranteed right to visit or see them—post-divorce or otherwise. They only have the right to ask
How to Determine Grandparent Rights
In ideal situations, families arrange their own visitation schedules even if it involves the help of a neutral person, such as a mediator. However, just as courts must sometimes decide how to handle custody and visitation between both legal parents, they may also decide cases when grandparents sue for visitation.
In the US, all 50 states have some sort of visitation statute that allows grandparents and other caregivers, such as foster parents and stepparents, the legal right to visitation. In some cases, courts may even grant custody to someone other than a legal parent.
While state laws vary when it comes to the details, the two main types of laws
- Restrictive visitation generally only allows grandparents' rights if the parents have divorced, or if one or both parents are deceased.
- Permissive visitation allows grandparents' rights to visitation even without the death of a parent or the dissolution of a marriage—so long as the visitation is in the best interests of the child.
Other situations the courts consider when deciding to grant visitation may include:
- If the child's parents were never married and did not live together.
- Whether a non-parent has legal custody of the child.
- If the grandparent has raised the child over the course of the previous year.
Determining "Best Interest"
Courts presume that a fit parent's decision to deny visitation is in the best interest of the child. In their request for a visitation court order, grandparents must provide proof that the child will suffer mentally, physically, or emotionally if the court denies visitation. They must show that their relationship with the child is in the child's best interest.
, which provides a guide to grandparent rights and grandparent visitation rights for all 50 states, offers details and factors courts use to determine the best interests of the child. Some of these factors include:
- The needs of the child, including considerations of physical and emotional health, safety, and welfare
- The capability of the parent(s) and/or grandparent(s) to meet the child's needs.
- The wishes of parent(s) and grandparent(s).
- The wishes of the child, if the child can make decisions for him- or herself.
- The strength and length of the relationship between the grandparent(s) and the grandchild.
- Evidence of abuse (physical, neglect, or substance) by the parent(s) or grandparent(s).
More Information & Resources
Most state court websites specifically address the rights of grandparents seeking visitation. They define the current law in their respective states, outline procedures, and provide legal forms.
The following organizations and publications provide information and support to grandparents who are trying to be involved in the lives of their grandchildren.
There are several online directories available for accessing family law attorneys for specific legal advice. Talking Parents can help you find a lawyer in your area through their searchable directory.
TalkingParents blogs are for informational purposes only and should not be construed as legal advice. Always consult with a qualified attorney regarding legal matters.