Court Rules on Extended Family Visitation: Grandparents
Even though grandparents are family, they are not guaranteed legal visitation rights.
Are grandparents entitled to visitation?
Unfortunately, the answer in many states is no. While every state has some laws or statutes regarding grandparent visitation, they do not guarantee grandparental visitation rights. Some states don’t allow grandparents to petition the court for visitation rights if their grandchildren live in intact families, while others may facilitate it so long as visitation is in the child’s best interests. The reality is that biological parents have the final say regarding their children’s best interests, but grandparental visitation rights can be attained.
What affects visitation rights for grandparents?
In 2000, a U.S. Supreme Court decision significantly impacted grandparental visitation rights nationwide. In Troxel v. Granville, the Supreme Court reviewed a case from the state of Washington where two grandparents were pursuing visitation rights for their granddaughters that exceeded what the girls’ mother wanted to facilitate. The matter escalated to the Supreme Court after the girls’ mother appealed lower court decisions that granted grandparental visitation rights for much longer than the mother wanted to accommodate. Even though state law gave the grandparents the right to petition the court for visitation, the Supreme Court ruled that the law was restrictive of the mother’s fundamental right under the Fourteenth Amendment to oversee the care and custody of her children.
This case established the precedent that a parent’s opinion will carry greater weight in court if a third party challenges a parent’s decision regarding visitation in state court. Even if a parent chooses to cut off contact between a child and the child’s grandparents, the Supreme Court decision dictates that parents’ choices about their kids are presumed to be in the best interests of the children, even if those decisions limit a child’s contact with their grandparents.
How do states determine grandparental visitation?
Depending on which state your grandchild lives in, you may encounter different circumstances that affect whether you can petition the court for grandparental visitation rights. States have statutory guidelines that facilitate either restrictive or permissive visitation. Restrictive visitation laws only allow grandparents to request and receive visitation rights if the child’s parents are divorced or if one or both parents are deceased. Permissive visitation laws allow grandparents and other third parties to request visitation even if both parents are alive or still married, as long as visitation is in the child’s best interests.
Common considerations that affect whether a court can grant grandparental visitation rights include:
- One or both parents of the child are deceased
- The parents of the child are divorced or separated
- One or both parents prevent grandparental visitation
- A parent has abandoned the child
- The child is in the custody of someone other than their parent(s)
- Grandparental visitation is in the child’s best interests
- A parent’s parental rights are terminated
- There is evidence of domestic violence
- A grandparent is unreasonably denied visitation
- One or both parents are declared legally incompetent
- A grandparent has provided child support
- Divorce, custody, separation, annulment, or paternity proceedings are underway
- A child has lived with a grandparent for a specific duration
- Grandparental visitation would interfere with the parent-child relationship
- One or both parents are incarcerated
Some of these considerations apply in most states, while others only apply in a few. If you are considering filing for grandparental visitation rights, it is highly recommended that you consult a family law attorney in the state where your suit will be filed. By working with a family law attorney, you can identify what prerequisites must be met to file for visitation.
Is temporary custody an option?
If a grandparent either seeks more than visitation or must provide care for a child in sudden circumstances, a variety of situations enable grandparents to formalize their status as a legally recognized caregiver by pursuing some form of custody. According to Verywell Family, temporary grandparent custody has several variations with their respective conditions and capabilities.
Physical custody with power of attorney
If a child lives with their grandparents and relies on them for care day-to-day, the grandparents have physical custody. This situation typically occurs when a parent or guardian creates an informal arrangement after asking a grandparent to provide care temporarily.
Even though a situation that dictates physical custody does not involve the court, a grandparent with physical custody should ensure they have a power of attorney (POA) that grants them the legal authority to address a child’s needs. A POA enables a grandparent to make decisions about a child’s medical care and other necessities during emergencies when a parent cannot be reached. A POA can be filed with the court, have a set deadline for when it expires, and be revoked by a parent at any time.
Depending on your state, you could bypass a POA and complete medical consent forms that give you the same rights. Additionally, some states allow grandparents to file affidavits in the event that a parent cannot be reached in an emergency, allowing grandparents to make those decisions before receiving a POA or other form of parental consent.
Physical custody as a foster parent
If a child is removed from their parents’ care, their grandparents can potentially get the opportunity to serve as foster parents. Depending on the state, officials can facilitate informal or formal kinship care. Informal kinship care involves little oversight or assistance from state officials. Formal kinship care requires grandparents to undergo the training and certification processes necessary for any individual to become a foster parent. Just like official foster parents, grandparents who can provide formal kinship care may receive a stipend for caregiving and be subject to visits and evaluations from Child Protective Services.
Physical and legal custody
If a grandparent wants legal custody in addition to physical custody, they can petition the court to request both. A child’s parents must petition the court to regain custody if legal custody is granted to a grandparent. Even if a grandparent has physical and legal custody of a child, the child’s parents retain visitation rights.
Custody through guardianship
Another way for grandparents to pursue temporary custody is through guardianship. Similarly to a POA, guardianship gives an individual the authority to make decisions on behalf of a child if their parents cannot care for them. Unless one parent is deceased or unavailable to provide consent, both parents must do so in petitioning the court for a grandparent to have guardianship. Depending on the circumstances involved, pursuing guardianship of a grandchild does not guarantee physical custody.