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Factors Considered for Grandparent Visitation and Custody

The laws surrounding grandparent's visitation rights is currently in a state of flux. A number of important courts decisions have come down over the past few years, but every state has different rules and laws.

Courts grant visitation or custody to grandparents only when certain conditions provided in state statutes are met. Conditions for a grandparent to attain custody differ from those conditions required for visitation rights. A grandparent should be familiar with the conditions for either custody or visitation before determining whether to file a petition to request either from a court of law.

Best Interests of the Child

Courts in every jurisdiction must consider the "best interests of the child" when granting custody or visitation rights to a grandparent. In some states, the relevant statute provides a list of factors the court should considered when determining a child's best interests. Other states do not provide factors in the statute, but courts in those states typically identify factors in custody and visitation cases interpreting the state statutes.

The following factors in determining the best interest of the child are among those included in state statutes and case law:

  • The needs of the child, including considerations of physical and emotional health of the child, the safety of the child, and the welfare of the child
  • The capability of the parents and/or grandparents to meet the needs of the child
  • The wishes of the parent(s) and the grandparent(s)
  • The wishes of the child, if the child is capable of making decisions for himself or herself
  • The strength of the relationship between the grandparent(s) and grandchild
  • The length of the relationship between the grandparent(s) and grandchild
  • Evidence of abuse or neglect by the parent(s) or grandparent(s)
  • Evidence of substance abuse by the parent(s) or grandparent(s)
  • The child's adjustment to the home, school, or community
  • The ability of the parent(s) or grandparent(s) to provide love, affection, and contact with the child
  • The distance between the child and the parent(s) or grandparent(s)

What if the Biological Parent is Abusive?

If a grandparent can show that a parent is abusive, unfit, or incompetent, courts are far more willing to grant permissive (and in some cases permanent) rights to grandparents if it is in the best interest of the child. In addition, courts have been very willing to grant visitation rights during the divorce period.

Mediation

It is usually best to try to resolve grandparenting time problems amicably, as opposed to through the courts. It may be that the parent who is refusing access will be amenable to having the dispute mediated by a qualified professional. It is usually best to make litigation a last resort -- to be used only when all else has failed.

Free Review of Your Grandparent Visitation or Custody Case

Child custody and visitation laws surrounding grandparents' rights are constantly changing in different states. If you're trying to determine the visitation and custody rights of grandparents, you should consider consulting a family law attorney for advice. A lawyer can assist you in understanding the laws in your state, determining the right approach to child custody and visitation, and, if needed, making your case to the court. Reach out to an attorney near you today and obtain a free initial evaluation of your case.

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