State statutes on the subject of grandparent visitation rights vary from statutes considered to be permissive to those considered to be stringent. The Supreme Court case which applies to grandparenting visitation rights, Troxel v. Granville, involved a Washington State statute governing the rights of third parties to seek court-enforced visitation.
Although the statute did not specifically mention grandparents, they were most likely to seek visitation under the statute. The Supreme Court decided that the statute was overbroad, as it required only that such visits be in the best interests of the children. Generally, the court decided that the statute violated a parent’s right to make decisions concerning the care, custody and control of children.
Laws governing grandparents rights are constantly being revisited, and the Supreme Court could elect to hear another case on the topic. In the meantime, grandparents whose access to their grandchildren has been restricted should fully investigate other possibilities before resorting to the remedy of the law. Besides family members attempting to reach an agreement on their own, the option of mediation is another venue that can often avoid the divisiveness of a lawsuit.
If no other remedy is found, grandparents need to be aware of their chances for success before commencing a lawsuit. Success is more likely if the grandparents have documented their relationship with their grandchild. Such documentation is a good step for grandparents to consider to safeguard their rights. There are, however, other factors that the court will consider.
I go into these factors in great detail in my book No Greater Loss. Here is a sample of the needed considerations:
First, have the grandparents been denied any visitation, or has their access to grandchildren merely been restricted? If all visitation has been denied, the grandparents have a better case. Indeed, in states with stringent statutes, grandparents cannot file a suit if they are allowed to see their grandchildren, even if the visitation is very infrequent.
Second, what is the family situation of the children in the dispute? If the family is “intact”–not affected by death or divorce–grandparents have a weaker claim. Grandparents of children born out of wedlock also may have a more difficult time, as paternity must be established before the suit can proceed. Adoption can also terminate grandparents rights just as it terminates parental rights, unless the adoptive parties are stepparents or other grandparents, in which case grandparents’ rights may survive the adoption.
Third, have the grandparents served as custodial parents or served in the role of parents? If grandparents have provided child care, taken children for doctor’s visits or otherwise filled roles normally filled by parents, the rights of the grandparents are generally strengthened.
As you can see these are complicated issues. Make sure you are completely informed if these situations apply to you.
