Grandparent and Caretaker Visitation Rights

Whether a family is going through a divorce, separation, or death of a parent, if a parent is restricting your right to see your grandchild, you may have options.

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.

Child Visitation Laws

All 50 states and D.C. 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 beloved 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. In a restrictive state, even divorced parents who agree about preventing grandparent visitation have the right to keep the grandparents away.

However, like Washington, many 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 serves the child's best interest. Others allow caretaking adults besides grandparents to petition for visitation. Still, these states usually require that the caretaker have a history of living in the home with the child for a certain period of time in order to be able to file the request.

Parents have challenged restrictive and permissive visitation statutes arguing that the laws infringe on parents' rights to raise their children as they see fit.

The Supreme Court Decision

In 2000, the United States Supreme Court (USSC) tackled grandparent visitation rights' critical question. In a Washington State case, a lower court struck down a permissive grandparent visitation statute, and the case moved to the Supreme Court.

The 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 or that allowing a nonparent to petition for visitation rights would amount to an assault on the family unit's integrity. In other words, grandparents can ask the court for visitation or custody, but a parent's rights will almost always take precedence.

The court also ruled that lower courts must presume that it's in a child's best interest when a parent refuses a grandparent's request for visitation, and the grandparent must prove otherwise. (Troxel v. Granville, 530 U.S. 57.)

How Does the Supreme Court Case Affect Grandparents?

Many states have visitation laws similar to Washington's. These states don't see grandparent or caretaker visitation as a severe restriction on a parent's rights to control their children's upbringing. Instead, the courts classify visitation as only a slight burden on that right.

So, if a grandparent files for visitation, the grandparent only needs to provide the court with a rational reason for the request. Preserving the right of children to maintain strong bonds with their grandparents generally qualifies as such a reason. Since Troxel, most challenges to state laws regarding grandparent visitation have failed, with courts finding the statutes constitutional.

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 undoubtedly be more careful to take parents' wishes into account when resolving disputes.

What Steps Can I Take?

Parents often want to hold on to as much time with their children as possible, even if that means denying a grandparent time with the child. If a parent denies your request for visitation with a grandchild, don't run to court. Talk with the parent (or parents) to see if you can agree on a visitation schedule. If a conversation isn't possible or you can't agree, you might want to consider requesting a mediation session with the child's parents.

Some state courts won't consider a 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. The goal of mediation is not for the mediator to force an agreement but to facilitate an open conversation between the parents and grandparents.

If you've tried talking to your grandchild's parent or mediation has failed, and you're still not getting anywhere, you can file a petition for visitation with your local court.

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).

State Grandparent Visitation Laws

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 or contacting a family law attorney.

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