In cases where they are denied access to their grandchildren, grandparents may be able to petition the court for grandparents visitation rights, but there are some restrictions on their ability to do so. The biggest obstacle to grandparents petitioning for visitation rights is a 2000 Supreme Court case, Troxel v. Granville, which struck down a Washington state law allowing third parties, like grandparents, to petition the court for visitation over the parent’s objections.
Troxel indicated that parents have a fundamental right to parent their children, including deciding whether grandparents should be allowed to have visitation access those children. However, this doesn’t mean all hope is lost for grandparents who are being denied visitation access to their grandchildren.
Troxel didn’t prohibit grandparents from petitioning the court for visitation, nor did it establish a rule that grandparents could only get visitation if it would harm the child not to allow it. Instead, it simply established that parental objections to visitation need to be given special weight and that any grandparent visitation orders had to be justified by “special factors.”
As a result of the decision many states changed their laws and interpreted the ruling in different ways, some affording grandparents more rights than others. Most states have systems in place to consider whether affording rights to the grandparents might be in the “best interests” of the child. New York law, for example, establishes a presumption in favor of a parent’s right to choose, but allows for grandparent visitation to be awarded if the grandparents can prove that the child’s interest in visiting the grandparents is great enough to override that presumption.
Overcoming a presumption of parental right can be difficult, no matter where you live or what the specific standards for your state. Grandparents who are able to prove a parent is unfit or that a child is actively being harmed will have the best chance of being awarded visitation, or even custody in some cases. Absent this, grandparents who have the best chance of success at getting visitation are those who have acted as a primary caregiver or guardian for the child for a period of time.
This area of law is somewhat complex and getting visitation as a grandparent isn’t necessarily going to be easy. Your best option is to be informed. Make sure you have a copy of my book No Greater Loss to guide you through the process. In my book I clearly explain the status of grandparents rights in America and I give you the insight to let you know how you need to approach the situation in your state and your particular instance.
