Parties Residing in the Same State

Each state provides the appropriate venue which can make custody and visitation determinations in a case where all of the parties reside in the same state. Where a divorce is pending, the appropriate venue for making a custody or visitation decision involving the grandparents and grandchildren is almost always the court hearing the divorce proceedings. Some states require visitation petitions to be filed with another domestic relations suit. Some states also permit visitation requests after a domestic relations order has been rendered or as an original proceeding.

Parties Residing in Different States

If a child's parents and/or grandparents live in different states, one of several laws will determine the appropriate court to hear a custody or visitation case. If a valid custody or visitation decree has been entered in one state, the Parental Kidnapping Prevention Act requires that another state must enforce and must not modify the decree. Another state may modify the decree only if the original state no longer has jurisdiction over the case or has declined jurisdiction to modify the custody or visitation decree. Congress amended this statute in 1998 to include a grandparent in the definition of "contestant."

If no state has made a valid custody determination, the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act, as adopted by each state, will apply. A court in a particular state has power to hear a custody case if that state is the child's "home state" or has been the home state of the child within six months of the date the legal action was brought and at least one parent continues to reside in the state. Other situations include those in which a state with jurisdiction over a custody case declines jurisdiction or no other state may assert jurisdiction over the child.