Grandparents, stepparents, and other caretakers often form deep and loving attachments with the children in their lives. Yet when death, divorce, or estrangement tears families apart, these caretakers may find themselves without any legal right to maintain contact with the children they love.
All 50 states currently have some type of "grandparent visitation" statute through which grandparents, and sometimes others (foster parents and stepparents, for example), can ask a court to grant them the legal right to maintain their relationships with loved children. But state laws vary greatly when it comes to the crucial details, such as who can visit and under what circumstances.
Approximately 20 states have "restrictive" visitation statutes, meaning that generally only grandparents can get a court order for visitation -- and only if the child's parents are divorcing or if one or both parents have died. However, most states have more permissive visitation laws that allow courts to consider a visitation request even without the death of a parent or the dissolution of the family, so long as visitation would serve the best interests of the child. And, in a restrictive state, even divorced parents who agree about preventing grandparent visitation have the right to keep the grandparents away.
Some states allow caretaking adults besides grandparents to make such a petition, usually requiring that the caretaker must have lived in the home with the child for a certain period of time in order to be able to file a request for visitation.
Both restrictive and permissive visitation statutes have been challenged in court by parents who argue that the laws are an infringement on parents' rights to raise their children as they see fit. Courts have made contradictory rulings.
In 2000, the U.S. Supreme Court tackled this critical problem of grandparent visitation rights. In the case of Troxel v. Granville, 530 U.S. 57 (2000), the Court reviewed a state court case from Washington State that struck down a permissive grandparent visitation statute. The Supreme Court agreed that parents have a fundamental right to make decisions about raising their children, but it did not agree that the permissive visitation statute was unconstitutional nor that allowing a nonparent to petition for visitation rights would amount to an assault on the integrity of the family unit.
However, the Supreme Court did say that the lower court applied the statute incorrectly, because it presumed that the grandparents' request for additional visitation was in the children's best interests, rather than presuming that the parent was acting in the best interests of her children in refusing the grandparents more than brief visits. This led the lower court judge to conclude that visitation should be granted unless the mother could prove that the additional visits would have an adverse impact on the children. The Supreme Court thought that this approach did not adequately protect a parent's fundamental right to make decisions for her children.
Many states have permissive visitation laws similar to Washington's. These states don't see grandparent or caretaker visitation as a severe restriction on the right of parents to control the upbringing of their children. Instead, they classify visitation as only a slight burden on that right. Therefore, the states need only justify the burden with a "rational" reason. Preserving the right of children to maintain strong bonds with their grandparents generally qualifies as such a reason and, since Troxel, most challenges to state laws regarding grandparent visitation have failed, with the statutes being found constitutional.
In addition, the Court in Troxel appeared to be swayed by the fact that the mother was not seeking to cut off the grandparents' visitation entirely. Instead, she chose to limit the visitation to one, non-overnight visit per month, plus some special holidays. If the mother had tried to bar the grandparents from visiting their grandchildren completely, it is possible that the Court would have reached a different conclusion.
The Supreme Court's decision in Troxel is not the final word on grandparents' visitation rights. Since Troxel, parents have continued to challenge how permissive visitation statutes are applied in specific fact situations and will continue to do so. Many states have amended their grandparent visitation laws to be consistent with Troxel's ruling that the starting presumption should be in the parents' favor, and judges in these states will certainly be more careful to take parents' wishes into account when resolving disputes.
Grandparents, caretakers, or parents involved in a struggle about visitation can find out more information on their state's current law by researching their state statutes from Nolo's website (search for "grandparent visitation").
Grandparents who face parental resistance to their contact with beloved grandchildren might consider requesting a mediation session with the children's parents. (In fact, some state courts won't consider your petition for visitation until the parties have attended mediation together.) Mediation means that you hire a neutral third party to help all of you create a legally binding agreement that everyone can respect and live with. For more about mediation and its advantages, see Nolo's Mediation FAQ.
For a comprehensive guide that shows separating or divorcing parents how to overcome obstacles and create win-win custody agreements, see Building a Parenting Agreement That Works, by Mimi E. Lyster (Nolo).