The rise in single-parent and dual-career households has given more and more grandparents an active (if not primary) role in raising their grandchildren. However, the experience of some grandparents is quite the opposite. Divorce, estrangement and other disruptive events can interfere with (or even eliminate) treasured time spent with grandchildren.
Many states allow grandparents to initiate a legal action for guardianship (see sidebar), visitation or child custody rights so they can continue to see their grandchildren. If parents are separating or divorcing, they can help avoid future conflict by including a provision that gives grandparents visitation rights in the separation and divorce agreements.
Specific laws and requirements concerning grandparents' rights vary by state but are always based on the best interests of the child. To make sure your rights are protected, it is best to speak to a family law attorney in your area.
When Should Grandparents Assert Rights?
There are many circumstances where it may be advisable for a grandparent to petition the court for the legal right to visit or even gain custody of his or her grandchild. Some states even require grandparents to become a party in pending custody and divorce actions or risk losing their rights altogether. Examples of situations where it might be advisable to establish (or re-establish) legal rights for grandparents include:
- Dissolution, annulment or legal separation of the parents' relationship
- Death of a parent (usually the related parent)
- Military deployment (e.g., stepping into visitation schedule on behalf of the absent parent)
- Remarriage (will possibly terminate any existing rights)
- Adoption (e.g., by a stepparent)
- Relocation to another state
- Placement into custody of someone other than a parent
- Any other circumstance where it would be in the best interests of the child
Even if a court has already established rights for a grandparent, those rights can sometimes be terminated by new circumstances and the grandparent will have to petition the court all over again. The laws do vary considerably amongst the states so it is best to speak with a family lawyer to learn more.
Many states will consider granting visitation rights to grandparents when it is in the best interest of that child, especially when there is a strong bond. Some of the factors the courts will consider include:
- The length and strength of the relationship with the grandchild
- Whether the grandparent has had (or tried to have) ongoing visits with the child
- Whether the nuclear family is intact (e.g., parents are living and married) or estranged
- The relationship between the child and parents and how the visitation will affect the relationship between the parents and the child
- The wishes of the parents (see sidebar)
- The wishes of the child (if the child is old enough to express his or her wishes)
- Whether the visits will interfere with the child's routine
- Any other factors affecting the child's best interest
If grandparents are able to see their grandchildren when they are with the related parent then a visitation order might not be warranted. Speak to an attorney to learn more about the options in your state.
If the child's welfare is threatened and/or the child has been in the physical care of the grandparent for a significant period of time, the grandparent may want to consider filing for guardianship (see sidebar) or custody. The courts may also consider awarding custody if:
- The parents are deceased
- The parents are unfit
- The parents are absent (e.g., military deployment)
- There is evidence of physical or emotional abuse or neglect
- It is otherwise in the best interest of the child
Custody is more difficult to obtain than visitation, especially if the parents are living and it is against their wishes. Therefore, it is extremely important to have a skilled attorney fighting for your rights.
All domestic legal matters that involve children are decided based on the best interest of the child. However, since the laws concerning grandparents' rights vary considerably from one state to another, even if you win your case in one state, you will have to start over again if the child moves to another state. To learn more about grandparents' rights speak to a family lawyer.
Third parties, including stepparents, siblings and other caretakers, may also be able to secure visitation and/or custody rights.