Grandparent Visitation Rights

The relationship between a grandparent and a grandchild can be one of great joy and importance for both grandparent and youngster. But sometimes an event such as a parent's death, divorce or estrangement can tear families apart and alter or sever relationships. After such events, the child's parents or guardian may block any further contact with grandparents, who may in turn take legal steps to maintain contact with the children they love.

As such scenarios became increasingly common, in the 1970s state legislatures began enacting "grandparent visitation" statutes to protect the visitation rights of grandparents and other caretakers. Today, all 50 states have some type of grandparent visitation law. These statutes allow grandparents to ask a court to give them the legal right to maintain their relationships with their children's children.

Visitation statutes, however, do not give a grandparent an absolute right to visitation, and the laws vary widely from state to state on crucial details such as who may petition for visitation rights, under what circumstances a grandparent may file such a petition, and on what legal grounds the petition will be granted. Perhaps most importantly, a 2000 U.S. Supreme Court ruling, Troxel et vir. v. Granville (U.S., No. 99-138, June 5, 2000), gave priority to the wishes of the parents in resolving visitation disputes, and this ruling is changing state courts' interpretation of visitation statutes (see below for a detailed discussion of the ruling and its implications).

The states differ on the extent to which parents have a right to control their children's upbringing. Some states have viewed visitation by grandparents as only a small infringement on the right of a parent to raise a child. These states focus on what is in the "best interest of the child" in making decisions about whether or not to allow grandparents to visit. In these "permissive" states, even unrelated caretakers can often petition for visitation rights, and grandparents can seek visitation even in cases where the family is intact (i.e., there has not been a divorce or a death in the family). In these states, courts may award grandparents visitation rights even if the parents object.

Other states are more protective of a parent's right to decide what is best for the child. They have "restrictive" visitation statutes, meaning that generally only grandparents, not other caretakers, have visitation rights, and these rights may be pursued only if the child's parents are divorcing, one or both parents have died, or the child was born out of wedlock. In other words, in these states the parents in intact families have the final word on whether or not grandparents are allowed to visit.

In addition, some states are more permissive than others in deciding when a grandparent may file for visitation, with a handful requiring that visitation must be denied altogether if a grandparent is to be able to sue.

There are no firm rules for determining when a court will grant visitation; every case is decided on its own facts and merits. However, grandparents can take steps to improve their chances of gaining visitation rights. In deciding visitation cases, courts often consider the previous relationship between the grandparent and grandchild, and they look favorably on evidence of a consistent and caring relationship. For this reason, a grandparent should try to build a meaningful relationship with a child from the outset. If the child's parent rejects the grandparent's efforts to visit, the grandparent should keep a record of his or her attempted contacts and continue to make a reasonable effort to preserve the relationship with the grandchild, such as by sending gifts and cards. When it comes time to meet with an attorney, grandparents should have documentary evidence and names of witnesses to support their claim that visitation is in the best interest of the child.

One way to avoid a court battle is to try professional mediation. In mediation, the disputing parties engage the services of a neutral third party to help them hammer out a legally binding agreement that all concerned can live with. The disputing parties can control the process and they have a chance to explain their perspectives and feelings. In a court of law, on the other hand, the judge will ultimately make a decision based on laws that may seem unfair to one or both sides.

The following organizations can help you locate mediation resources in your area:

• American Bar Association
• American Arbitration Association
• Association for Conflict Resolution
• Conflict Resolution Center

In cases where a child's parents are divorcing, a way to guarantee visitation and avoid future litigation is to have grandparent visitation rights included in the divorce 

U.S. Supreme Court Decision on Grandparent Visitation

Tommie Granville and Brad Troxel had two daughters. After Tommie and Brad separated in 1991, Brad went to live with his parents, Jenifer and Gary Troxel, and regularly brought his daughters to his parents' home for weekend visits. In May 1993, Brad committed suicide. Although the Troxels at first continued to see their granddaughters on a regular basis, in October 1993 Tommie informed the Troxels that she had decided to limit their visitation with her daughters to one visit a month. In December 1993, the Troxels filed a court petition to increase the visitation. Washington State has a "permissive" state statute, one that allowed a court to order visitation if it is in the "best interest of the child," even over a parent’s objections.In a 2000 case from Washington State, the U.S. Supreme Court ruled that unless there are allegations that a child's parents are unfit, the wishes of the parents should be given priority in resolving visitation disputes. Troxel et vir. v. Granville (U.S., No. 99-138, June 5, 2000). This ruling has influenced how other courts have ruled and states have crafted their visitation laws. Here are the facts of the case and how the Supreme Court ruled:

In 1995, the trial court in Washington State struck a compromise, ordering more visitation than Tommie wanted but less than the Troxels were seeking. Tommie appealed, and the case went to the Washington Supreme Court, which ruled that the state statute unconstitutionally infringes on the fundamental right of parents to raise their children. The Troxels appealed the case to the U.S. Supreme Court.

The U.S. Supreme Court ruled 6 to 3 to reject the Troxels' request for extended visitation. The Court, however, did not say that the Washington State statute was unconstitutional, but only that the lower court did not apply the statute properly. The Court said that the lower court should have given special weight to what Tommie believed was in her daughters' best interest. Thus, the Court did not declare that a parent should always have the last word on visitation, but only that the parent's opinion should carry more influence with a court than a grandparent's own view of what is in a child's "best interest."  The Court’s ruling was complicated by the fact that although the majority of the justices generally agreed, each had a different reason for ruling with the majority, which resulted in six written opinions, making it hard for state courts to interpret the decision.

Nevertheless, the Court's ruling prompted a wave of lawsuits by parents challenging the constitutionality of their state's grandparent visitation statutes. In many cases, state courts are ruling in favor of the parents, meaning that it will be harder for grandparents in some states to obtain court-ordered visitation in certain situations. As a result, the "permissive" states are becoming more like the "restrictive" ones, giving the parent's view of the best interest of the child great weight.

For example:

• The Iowa Supreme Court ruled that Iowa's visitation statute was unconstitutional because it "places the best interest decision squarely in the hands of a judge without first according primacy to the parents' own estimation of their child's best interests." Santi v. Santi (Iowa, No. 77/00-0181, Sept. 6, 2001)
• In reviewing its state's statute, the Oklahoma Supreme Court held that before a judge can intervene and rule on whether or not visitation is in a child's best interests, the grandparent must prove that there is a threat of harm to the child in the absence of visitation. Neal v. Lee (Okla., No. 93670, Nov. 7, 2000)
• However, the South Dakota Supreme Court has ruled that the "best interests of the child" standard may still be used as a guide in that state. Currey v. Currey (S.D., No. 22184, August 7, 2002).
• In 2005, the Texas legislature stiffened its laws on grandparents' rights, permitting grandparent visitation over a parent's objection only if denying it would "significantly impair the child's physical health or emotional well-being."

But as one commentator has put it, the Supreme Court's message is clear: The best way to have a relationship with your grandchildren is to have a good relationship with your children.

The Troxel ruling and subsequent decisions by state courts suggest that it may be very difficult for the grandparents to obtain court-ordered visitation where the family is "intact." In such cases, mediation may be the best avenue if the family relationship has not become too strained. Grandparents will have a better chance where the parents are separated, particularly in cases where the parents disagree over visitation. Here, many courts will feel compelled to step in and make the determination of what is in the child's best interest.

Other Resources on Grandparent Visitation

Grandparents Rights Organization

Grandparents' Web

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