Child Visitation Laws

All 50 states currently have some type of "grandparent visitation" statute through which grandparents and sometimes others (foster parents and stepparents, for example) 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. Some states allow caretaking adults besides grandparents to make such a petition.

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.

The U.S. Supreme Court Decision

In 2000, the U.S. Supreme Court tackled this critical problem of grandparent visitation rights. In the case of Troxel v. Granville, 530 U.S. 57 (2000), the Court reviewed a state court case from Washington State that struck down a permissive grandparent-visitation statute. The Supreme Court agreed that parents have a fundamental right to make decisions about raising their children, but it did not agree that the permissive visitation statute was unconstitutional nor that allowing a nonparent to petition for visitation rights would amount to an assault on the integrity of the family unit.

However, the Supreme Court did say that the lower court applied the statute incorrectly. because it presumed that the grandparents' request for additional visitation was in the children's best interests, rather than presuming that the parent was acting in the best interests of her children in refusing the grandparents more than brief visits. This led the lower court judge to conclude that visitation should be granted unless the mother could prove that the additional visits would have an adverse impact on the children. The Supreme Court thought that this approach did not adequately protect a parent's fundamental right to make decisions for her children.