Requirements for Awarding Grandparent Visitation and Custody
Grandparent Custody Requirements
Statutory provisions for child custody (termed "conservatorship" in a few states) are usually less specific than the statutes regarding grandparent visitation. Courts must first consider the relationship of the parent or parents with the child before considering whether granting custody to grandparent(s) is appropriate. Several states specifically include consideration of grandparents as custodians if both parents are deceased. If either or both parents are alive, courts in most states will presume that the parent of the child should retain custody. Grandparents must generally prove the parent(s) unfit in order to overcome the judicial presumption in favor of the parent. Even if the relationship between the grandparent and grandchild is strong, it is very difficult for a grandparent to attain custody of a grandchild against the wishes of the parent or parents.
Grandparent Visitation Requirements
State statutes providing visitation to grandparents generally require that a number of conditions occur before visitation rights can be granted. The marital status of the parents must be considered in a majority of states before a court will evaluate the relevant factors to determine if visitation is appropriate. In some of these states, the parents'marital status is considered only if the grandparent or grandparents have been denied visitation by the parents. In other states, marital status is considered only if the grandchild resided with the grandparents for a certain length of time.
A minority of states require that at least one parent is deceased before a court can award visitation to the parent of the deceased parent of the child. For example, a maternal grandparent in one of these states may be awarded visitation only if the mother of the child is deceased.
Once the statutory conditions for visitation are met, grandparents must establish the factors that courts may or must consider to grant visitation rights. In every state, grandparents must prove that granting visitation to the grandchild is in the best interest of the child. Several states also require that the court consider the prior relationship between the grandparent and the grandchild, the effect grandparental visitation will have on the relationship between the parent and child, and/or a showing of harm to the grandchild if visitation is not allowed.
Effect of Adoption on Grandparent Visitation Rights
State statutes vary in their treatment of cases in which a grandchild has been adopted. In several states, adoption by anyone, including a stepparent or another grandparent, terminates the visitation rights of the grandparent. In some states, adoption by a stepparent or another grandparent does not terminate visitation rights, but adoption by anyone else does terminate these rights. In other states, adoption has no effect on the visitation rights of grandparents, as long as other statutory requirements are met.