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Grandparents' Rights in the Child Custody Process
In every state, in most cases, grandparents have rights to be awarded custody or visitation of grandchildren. These rights are not constitutionally based or derived from common law. They are based on state statutes.
Every state has created statutes to provide visitation rights to grandparents. These laws allow grandparents to enjoy legal rights to visit a child. Each state has incorporated statutory-based guidelines for grandparent visitation. Maintenance of contact with grandchildren is the primary intent behind granting grandparents visitation.
State Laws Provide Grandparent Visitation
Two specific types of state laws provide grandparent visitation:
- Restrictive visitation statutes allow grandparents to seek visitation if parents are divorced or if one or both parents have died.
- Permissive visitation statutes allow grandparents to request visitation even if both parents are living or still married.
Courts in all jurisdictions must consider the “best interests of the child” when granting custody or visitation rights to grandparents. The list of factors to be considered when determining a child’s best interests are sometimes set forth in state statutes. Sometimes, statutes do not include a list, but the courts identify factors.
What Factors Determine the Best Interests of the Child?
The following factors are included in determining the “best interests of the child”:
- Physical and emotional health needs of child
- Capability of parents or grandparents to meet child’s needs
- Wishes of parents or grandparents
- Wishes of child if child is capable of making decisions
- Strength of relationship between grandparents and grandchild
- Length of relationship between grandparents and grandchild
- Evidence of abuse or neglect by parents or grandparents
- Evidence of substance abuse by parents or grandparents
- Child’s adjustment to home, school, or community
- Ability of parents or grandparents to provide love, affection, and contact
- Distance between child and parents or grandparents
Some courts have decided that state statutes providing grandparent visitation are unconstitutional. In the U.S. Supreme Court case, Troxel v. Granville, grandparents petitioned for visitation rights after the mother limited visits to one per month and during holidays. In Troxel, the Court held that the visitation statute in Washington violated due process rights of parents to raise children and make decisions regarding “care, custody, and control.” The Troxel case and others have caused states to consider bills that would modify or completely change visitation. The Court did not make a finding about whether all nonparent visitation statutes violate the constitution; the Court limited its holding to the Washington statute.
The majority of state laws related to grandparent rights have remained intact. Grandparents seeking to attain visitation rights should inquire about the status of state laws in their jurisdiction.