It can take a village to raise a child, and for many families, grandparents are a part of that village. At the same time, there are instances where a parent may not want the grandparents involved in their child’s life.
In some cases, it’s in the child’s best interest for their legal guardian to sever their relationship with the grandparents—but when it’s not, it can leave grandparents scrambling to figure out how to get custody or visitation rights. Grandparents can also face custody or visitation issues if the parent loses custody of the child or passes away. Let’s take a look at what can happen in those situations.
Although every state in the United States offers some sort of legal avenue for a grandparent to seek custody or visitation rights, most of the statutes have been in effect for less than 40 years. Federal legislation may also affect grandparents seeking custody or visitation rights, but typically rights for grandparents are based on each state’s law.
In 1980, Congress passed the Parental Kidnapping Prevention Act, which requires each state to give full faith and credit to child custody decrees from other states. Every state except for Massachusetts has adopted a version of the Uniform Child Custody Jurisdiction and Enforcement Act, which requires states to recognize and enforce all valid child custody decrees.
However, some state courts have determined that state provisions involving grandparent visitation rights are unconstitutional. In 2000, the United States Supreme Court agreed to review a case that is now considered the most important case ever decided regarding grandparents’ rights. In Troxel v. Granville, the Troxels sued for the right to visit their grandchildren after the mother limited their weekend visitations to once a month and some holidays. The Supreme Court issued a 6-3 decision that deemed the application of a Washington third-party visitation statute to be unconstitutional in that specific instance. They did not make a finding on whether all third-party visitation statutes violate the constitution, which left the decision for grandparents’ rights in the hands of the states.
Each state has its own specific statute for governing how grandparents’ custody and visitation cases are handled. Still, they fall into one of two categories: permission visitation statutes and restrictive visitation statutes. States with permissive visitation statutes may have more lenient requirements or limitations for grandparents’ rights. In a state with a restrictive visitation statute, grandparents may only seek visitation rights if the parents are divorced or in the event of one or both parents dying. Some states also prohibit grandparents from seeking visitation.
In the wake of Troxel v. Granville, many states amended or completely revised their statutes for how grandparents’ custody and visitation cases are handled and continue to do so. Grandparents seeking visitation or custody rights should look into their state’s provision to see if they can file a petition against their grandchild’s parent(s) in the county that the child resides in.
Some states include a list of factors that the courts should consider in the statute, but not every state does. However, most states are focused on what would be in the best interest of the grandchild.
In every petition for custody or visitation, the court must consider what’s in the child’s best interest. Depending on the state’s statute, there may be a specific list of things the court should consider to determine that. Not every state specifies what things the courts should consider when making their decision, but typically they consider things such as:
In many states, adoption can affect both a grandparent’s and grandchild’s rights, including an adopted child’s right to receive an inheritance from their birth grandparents. In some states, a grandparents’ rights may be terminated completely in the event of an adoption. However, many states offer an exception in cases of an adoption by a step-parent, blood relative, or close family friend. When the grandparent(s) petition the court for visitation, the court will decide on whether they will require visitation based on what they determine to be in the best interests of the child.
There are instances where the parents give up their parental rights, and the child is adopted by someone that doesn’t have existing ties to the family. In that case, it may be harder for a grandparent to petition the court for visitation rights if the adoptive parents do not want them to have a relationship with their grandchild. If it was an open adoption, the grandparent might be able to contact the adoptive parents about maintaining their relationship with their grandchild.
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