Grandparents visitation laws vary, so get informed

Grandparents 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. Many will have to make legal claims based on varying state laws.

In my book No Greater Loss I discuss the best methods for grandparents to solidify these claims and the best practices for grandparents in their relationship with their grandchildren.

All 50 states currently have some type of “grandparent visitation” statute through which grandparents can ask a court to grant them the legal right to maintain their relationships with loved 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. However, most 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 would serve the best interests of the child. And, in a restrictive state, even divorced parents who agree about preventing grandparent visitation have the right to keep the grandparents away.

Some states allow caretaking adults besides grandparents to make such a petition, usually requiring that the caretaker must have lived in the home with the child for a certain period of time in order to be able to file a request for visitation.

Both restrictive and permissive visitation statutes have been challenged in court by parents who argue that the laws are an infringement on parents’ rights to raise their children as they see fit. Courts have made contradictory rulings.

In deciding visitation cases, courts often consider the previous relationship between the grandparent and grandchild, and they look favorably on evidence of a consistent and caring relationship. For this reason, a grandparent should try to build a meaningful relationship with a child from the outset.

If the child’s parent rejects the grandparent’s efforts to visit, the grandparent should keep a record of his or her attempted contacts and continue to make a reasonable effort to preserve the relationship with the grandchild, such as by sending gifts and cards.

When it comes time to meet with an attorney, grandparents should have documentary evidence and names of witnesses to support their claim that visitation is in the best interest of the child.