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Grandparents' Visitation and Custody: Background

Grandparents in every state in the country have rights, in some circumstances, to be awarded custody of their grandchildren or to be awarded court-mandated visitation with their grandchildren. Grandparents' rights do not come from the Constitution, nor did they exist traditionally. Recognition of grandparents' rights by state legislatures is a fairly recent trend, and most of the statutes granting these rights have been in effect for less than 40 years.

Basics of Grandparent Visitation Rights

The basic premise of allowing grandparents visitation rights is that a child needs grandparents, and other family members, in their lives in order to grow up to be healthy adults. Grandparent visitation laws often expand visitation rights to other family members, as well, including siblings. When this is the case, it may be called "third party visitation rights" or "nonparent visitation rights."

Visitation rights for non-parents are most common when a child's immediate family is no longer intact. Sometimes this means that parents have divorced, and the child would benefit from having grandparents in their life, even if the child's custodial parent does not agree. In other situations, nonparent visitation rights are granted when a child is adopted, or put in foster care. Courts are more likely to grant non-parent visitation when the child has been adopted or is in foster care, because the child's biological parents' wishes are not at issue.

Applying for Grandparent Visitation Rights

When a nonparent asks a court for visitation rights, they must show that visitation is in the best interests of the child. When determining if visitation rights are appropriate, courts consider a number of factors, including:

  • The child's relationship with the nonparent;
  • The relationship between the nonparent and the child's parent or guardian;
  • The last time the child had contact with the nonparent;
  • The effect the visitation will have on the relationship between child and legal guardian;
  • How grandparent visitation will impact the time the child has to visit with his or her biological parents or other family members;
  • Any history of physical, sexual, or emotional abuse or neglect by the nonparent; and
  • Any other factor that the court thinks is relevant to granting or denying nonparent visitation rights.

Federal Law

Federal legislation may affect grandparents' rights, though these rights are based primarily on state law. Congress passed the Parental Kidnapping Prevention Act in 1980, which requires that each state give full faith and credit to child custody decrees from other states. Federal legislation passed in 1998 also requires that courts in each state recognize and enforce grandparental visitation orders from courts in other states.

All states have adopted a version of the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA, previously the Uniform Child Custody Jurisdiction Act), which requires courts in the state where a child resides to recognize and enforce valid child custody orders from another state. Though the UCCJEA is not a federal statute, the provisions of this uniform law as adopted in each state are similar.

Constitutionality of State Statutes

Some courts have determined that state statutes providing visitation to grandparents are unconstitutional. The United States Supreme Court in the case of Troxel v. Granville (2000) determined that the Washington visitation statute violated the due process rights of parents to raise their children. This case and similar decisions by state courts caused several state legislatures to consider bills that would modify or completely revise the visitation rights in those states.

Most state laws related to grandparent rights, however, have survived intact. Nevertheless, grandparents who seek to attain visitation rights should check the current status of the law in their respective states. If you would like to know more about child custody or grandparent visitation rights, you may want to contact an attorney in your area with child custody and visitation experience who may be able to help.

Next Steps
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