Grandparents’ Rights

When a family falls apart due to the death of a family member, a divorce, a separation, or any other circumstance, many grandparents fail to recognize that they have certain legal rights when it comes to their grandchildren. Most states have laws that allow grandparents legal rights to seek visitation, or even custody of their grandchildren when they find it in the best interest of the children to be removed from their current situation. The intent behind granting grandparents’ rights is to encourage a relationship between the children and their immediate family members. To explore this concept, consider the following grandparents’ rights definition.

Definition of Grandparents’ rights

Noun

  1. The right of grandparents to seek visitation with, or custody of, their grandchildren.

Origin

Early 1990s       U.S. Supreme Court decision

Permissive Visitation vs. Restrictive Visitation Rights

There are two main types of laws when it comes to granting grandparents legal rights to visitation: permissive and restrictive. Restrictive visitation laws, which now exist only in a few states, give grandparents permission to request visitation only if the child’s parents have divorce, or if at least one parent is deceased.

Most states have permissive visitation rights, which allow grandparents to request visitation rights even if both parents are alive, and the parents are not divorced. In these cases, courts consider granting visitation rights if it is in the best interests of the child.

Requirements for Visitation

When a grandparent is fighting for visitation rights, the court many require proof that there was a previous relationship between the grandparent and the grandchild, and that visitation is in the best interests of that child. Each state has specific guidelines for these cases, but the most commonly used factors include:

  • Age and sex of the child
  • The physical and emotion health of the child and the parents
  • Whether the parents use excessive discipline methods, or emotionally, physically, or sexually abuse the child
  • Whether there is evidence the parents use drugs or alcohol excessively
  • The wishes of the child if he is old enough to decide for himself
  • The closeness and length of the relationship between the child and grandparent
  • The ability of the grandparent to provide love and attention to the child
  • Religious and cultural issues
  • Ability of the parents and grandparent to provide for the child’s special needs, should they exist
  • The grandparent’s ability to provide for continuation of a stable home and family environment

Grandparents Custody Rights

When a grandparent seeks actual custody of a grandchild, the same factors that are used to determine the best interest of the child are considered. If both parents are deceased, the courts will easily consider granting grandparents custody rights. If one or both parents are alive however, the grandparents may have to prove that the parents are unfit to raise the child in a safe and secure manner. This is because the judicial system generally presumes that the child should stay with his biological parents when at all possible.

Supreme Court Ruling on Grandparents’ Legal Rights to Visitation

The 2000 Supreme Court ruling in Troxel v Granville, 530 U.S. 57, solidified the importance of grandparents having certain rights regarding their grandchildren. In 1995, after their son’s death, a set of grandparents sought to have regular visitation with their grandchildren. The mother denied their request, so the Troxels filed a motion with the court in their home state of Washington. The state court initially granted the Troxels’ request, but after a round of hearings by the appeals court, the state Supreme Court, the U.S. Supreme court made a final ruling that has had a far-reaching effect on grandparents’ rights throughout the country.

The U .S. Supreme Court declared the state of Washington’s statute on grandparents’ visitation rights to be unconstitutional, as it infringed on parents’ constitutional rights to rear their children as they see fit. While the laws in the state allowed any person to seek visitation rights at any time, the Supreme Court found that the “sweeping breadth and unlimited power” given to judges by the statute violated fundamental parental rights. Following this Supreme Court decision, many states began relying on the decision of a fit parent regarding grandparents’ rights of visitation.

Grandparents’ Rights Organizations

The American Grandparents Association is a group formed with the goal of enhancing the life of grandparents around the United States, partially by helping grandparents understand and maintain their legal rights concerning their grandchildren. The group also works with grandparents who are caring for, or already have custody of, their grandchildren, and provides a great deal of information and resources for grandparents.

The Grandparents’ rights Organization, formed in 1984, is a non-profit organization that educates and supports grandparents and grandchildren maintain a relationship, even when the family dynamic is threatened. The organization has the goal of overturning laws that hinder grandparents’ rights. As of 2015, the organization is the largest of its kind in the United States.

Related Legal Terms and Issues

  • Child CustodyThe care, control, and maintenance of a child, often awarded by the court.
  • Best Interests of the Child – A doctrine used by the court to determine which parent is suitable for ensuring the health and happiness of a child during custody proceedings.
  • JurisdictionThe legal authority to hear legal cases and make judgments; the geographical region of authority to enforce justice.
  • Visitation Rights – Permission granted by the court to a noncustodial parent to visit his or her child. Visitation rights may be extended to grandparents.

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