Child custody and visitation disputes typically involve a child's parents, but not always. Grandparents are heavily involved in child rearing in many families, sometimes as the primary caretakers. While parents are often the central figures in a child custody dispute, grandparents can also have their say with respect to visitation rights and even custody. FindLaw's Grandparent Rights section includes information and tips on grandparents' rights in child custody and visitation cases, including summaries of state laws and procedures, as well as factors considered when courts make custody and visitation decisions involving grandparents.
Grandparents' Rights at a Glance
As with most family law provisions, the child custody and visitation rights of grandparents are determined on a state-by-state basis. Most states allow some level of visitation for grandparents, as long as there are no other concerns (alcohol abuse, for example). And in some cases, grandparents in most states may take custody of their grandchildren. But it wasn't always the case; state laws explicitly granting these rights to grandparents didn't come about until the 1960s and 1970s.
Grandparent Visitation Rights: Basics
The concept of allowing grandparents to visit with their grandchildren, even when the parents may object (unless it's for a valid reason), is based on the premise that children need contact with their grandparents. While parents typically embrace this and don't interfere with these relationships, many states now prevent parents from standing in the way. Many such laws are much broader, including siblings and other family members, often referred to as "third party" or "nonparent" visitation rights.
As far as federal law is concerned, courts in each state are required to recognize and enforce nonparental visitation orders from other states. But the U.S. Supreme Court also ruled that the nonparent visitation portion of Washington state's visitation statute was unconstitutional, ruling that it violated the due process rights of parents to raise their children.
How Grandparent Visitation Rights are Granted
If parents or guardians encourage or at least allow grandparents to visit their grandchildren, then no formal process is required. But when a grandparent (or other nonparent) approaches the court to obtain visitation rights, they must prove that it is in the child's best interests. Courts will consider several factors when making this determination, including (but not limited to):
- The relationship between the child and the grandparent
- The relationship between the parent and the grandparent
- How recently the child has had contact with the grandparent
- What affect the visitation might have on the child and parent
- Whether grandparent visitation would unfairly interfere with the child's time with parents
- Any history of abuse or neglect by the grandparent
Grandparent Child Custody Rights: Basics
Typically, states will only consider a grandparent's child custody wishes if the child's parents or legal guardians are deemed unfit. Some states are more restrictive and require that both parents be deceased before grandparents are eligible for child custody (or "conservatorship"). Otherwise, grandparents must prove to the court that their custody is in the best interests of the child. Even evidence of a very close bond between the child and grandparent is usually not enough to overcome the judicial presumption favoring parental custody.
Click on a link below to learn more about grandparents' rights with respect to custody and visitation. Talk to an attorney to learn more about the laws and procedures in your state.