Grandparents Rights to Child Visitation After Divorce

Grandparents’ visitation rights are a relatively recent phenomenon in Family Law. It has only been an issue that can be litigated these last forty years. The high incidence of divorce and the detrimental effect it has on children gives the courts concerns that children do not lose contact with extended family. All states have some sort of statute related to Grandparent visitation.

There are two types of grandparents’ visitation statutes:

Restrictive statutes – allows visitation only to grandparents and not to other third parties, in some cases visitation is allowed only if one or both parents are dead or the parents are divorcing.
Permissive statutes—allow visitation to grandparents, step-grandparents, foster parents and other third-party caregivers if it is in the best interest of the child. Death of a parent or divorce is not required.

The majority of states have permissive statutes. This has not stopped parents from challenging the legality of such statutes. The Supreme Court struck down a Washington state statute in 2000, in the case of Troxel v. Granville, 530 U.S. 57 (2000). The Court found that parents had a constitutional right to raise their parents as they see fit and that the lower court was wrong in presuming that seeing grandparents was in the child’s best interest. It was determined that unless a parent was unfit, the court had to give more weight to the parents reasoning for denying visitation.

The Court did not rule that grandparents’ rights visitation statutes were unconstitutional. Since Troxel, most states with permissive statutes have amended their statutes to be consistent with the Supreme Court ruling.

How to Get Visitation Rights

Grandparents will have to petition the Family court in their jurisdiction for visitation. The best method of getting visitation would be to submit your case to mediation or another form of alternative dispute resolution. Most courts require that custody matters go through mediation before they go before a judge. Mediation is completed before a neutral third party and if successful results in an agreement that all sides can live with. If mediation does not work, the court will decide the case in a hearing.

Do You Need a Lawyer?

Grandparents’ rights statutes vary from state to state. You need to consult legal counsel to determine the extent of your rights in your jurisdiction. A lawyer experienced in family law, can advise you of your rights and help you file a petition or seek mediation.

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