Grandparents' Visitation and Custody: Background
Grandparents in every state in the United States have rights, in some circumstances, to be awarded custody of their grandchildren or to be awarded court-mandated visitation with their grandchildren. Grandparents'rights are not constitutional in nature, nor did they exist at common law. Recognition of grandparents'rights by state legislatures is a fairly recent trend, and most of the statutes have been in effect for less than 40 years.
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.
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 state legislation in their respective states.