Court Considerations: Grandparent Visitation and Custody

The laws surrounding grandparent's visitation rights vary by state but are always intended to support the best interests of the child. For instance, state laws tend to favor grandparent custody (assuming they're fit to be guardians) in the event the biological custodial parent(s) are unfit to care for their child or are deceased. Visitation also may be granted where it can be shown the child would benefit from a relationship with their grandparent(s), if it's otherwise not being facilitated through the parents.

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. It's important to understand the court considerations for grandparent visitation or custody before determining whether to file a petition in court.

Court Considerations for Grandparent Visitation or Custody: 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's in the best interest of the child. Courts often favor visitation and/or custody (often temporary) during the divorce period as well.

Court Considerations for Grandparent Custody and Visitation vs. Mediation

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

Get Legal Help with Your Grandparent Visitation or Custody Case

Court consideration for child custody and visitation requests vary widely from state to state. In many cases, it's wise to 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 experienced family law attorney near you today.

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