Grandparents Rights: Legal Advice on Access and Custody of Grandchildren

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This page explains grandparents’ rights in relation to their grandchildren, including how to apply for access or custody, as well as becoming a guardian.

When Access to Grandchildren Becomes an Issue

Grandparents play an important part in enriching the lives of their grandchildren. Sadly, some grandparents are prevented from seeing or spending time with their grandchildren. This can, understandably, be upsetting for both grandchildren and grandparents.

There may be several reasons why grandparents are excluded from the lives of their grandchildren. Examples are an ongoing divorce proceeding between the child’s parents or unresolved issues between the child’s parents and the grandparents.

Unlike parents, grandparents do not automatically have legal authority concerning their grandchildren. The rights of grandparents concerning their grandchildren are determined by the family law in each state.

What are Grandparents’ Rights Concerning Their Grandchildren?

All fifty states have passed laws allowing grandparent visitation rights so long as the grandparents have no issues which could affect the relationship, such as drugs or alcohol abuse.

The majority of state laws also allow child custody rights to grandparents under specific circumstances.

The Visitation Rights Enforcement Law ensures that grandparents can see their grandchildren anywhere in the United States, provided that they have grandparent visitation rights in one state.

Many of these grandparent visitation laws also apply to extended family members. They allow siblings and other family members to visit the children. Such laws are frequently referred to as “nonparental” or “third party” visitation rights.

Federal law demands that the courts in each state recognize and enforce nonparental visitation court orders from other states.

 

Can a Parent Deny a Grandparent Visitation?

Unless there is a justifiable cause, grandparent visitation rights apply even if the parents do not wish for the grandparents to have these rights.

This is because grandparent visitation rights are founded on the assumption that it is in a child’s best interests to have contact with their grandparents.

While most parents accept this, some attempt to interfere with these relationships. Several states have passed laws prohibiting parents from interfering with grandparent visitation rights.

Do I Need a Lawyer to Enforce Grandparents Rights?

Whether you need a lawyer to enforce your grandparents rights depends on your circumstances.

A good first step to resolving any issues is to discuss and negotiate with the child’s parents. However, if such conversations fail, you might seek family mediation.

Family mediation is when you hire a qualified impartial professional, such as a mediator, to assist you and the child’s parents in reaching a written agreement in a secure environment.

The mediation process is less contentious and may help you avoid having to go to court. Mediation also typically considers the needs and well-being of all parties concerned, particularly the children. As a result, it may have a more positive long-term impact on the family since all parties concerned work together to reach an acceptable agreement.

If mediation does not work, you can try other legal options. For instance, the grandparent can petition a family court for access to their grandchildren. Depending on the circumstances, you can petition for custody rights or guardianship.

Issues regarding custody and visitation rights are not straightforward to resolve. If you seek to enforce your grandparents rights, you should contact a grandparents rights lawyer.

They can give you legal advice, help you prepare all required legal documents, and represent you in family court. They are equipped to help you with your family law case.

How Are Grandparent Visitation Rights Granted?

You do not need a formal process if a parent or a legal guardian allows you to visit your grandchildren.

If you are denied access to your grandchildren, you can take legal action by petitioning a local district court. 

 

What to Do if You Have Been Denied Access to Your Grandchildren

When a grandparent petitions the court for visitation rights, they must demonstrate that this would be in the child’s best interests.

Below are some of the important factors the court will examine when making this conclusion:

  • The connection between the parents and the grandparents

  • How frequent and recent is communication between grandchild and grandparents?

  • The financial circumstances of the grandparents

  • The child’s relationship with the grandparents

  • Is there a history of abuse or neglect?

    • What impact does grandparent visitation have on the child and their parents?

    • Whether grandparent visitation rights would infringe on the child’s time with their parents

    • The consent of the child’s parents or legal guardians

    • The child’s wishes, assuming they are old enough to have their opinions

    Generally speaking, grandparents cannot seek visitation rights except when their grandchildren’s parents are unmarried.

    However, state laws allow a few exceptions in the following circumstances:

    • The parents live apart on a permanent or indefinite basis

    • The parent’s whereabouts are unclear (and have been for at least a month)

    • One parent signs on to the grandparent’s petition

    • The children do not reside with either of the parents

    • A stepparent has adopted the grandchildren

    • One of the parents is jailed or voluntarily institutionalized

    How Grandparents Can Apply for Child Custody

    Family law differs from state to state. Grandparents are not the only ones who can seek child custody in court. Usually, state laws allow almost any relative to seek child custody at a local district court.

    However, in most state laws, a grandparent or anyone else can only have their custody rights approved if the child’s parents are found to be unsuitable.

     

    When Do the Court Grant Grandparents Custody Rights?

    In some states, in order to gain custody of a grandchild, both parents of the child must be dead or in a situation where their whereabouts are unknown. In this situation, the grandparents could be offered child custody or conservatorship.

    Otherwise, grandparents can only enforce their custody rights when they have permission from the child’s parents.

    However, suppose the grandparents can demonstrate to the court that their custody is in the child’s best interests. In that case, the court might decide that the parents’ permission is not required.

    This is usually challenging because even proof of a deep relationship between a child and their grandparents is frequently insufficient to get a court order to terminate parental custody.

    So in most cases, you may benefit from seeking legal advice from a child custody attorney to understand your options for legal custody.

    If the court grants legal custody to the grandparents, they will then be responsible for the child’s day-to-day care, accommodations, and upbringing. The court will also provide specific directions about the child’s contact with their parents.

    Custody Rights in Cases of Child Abuse

    If a parent or legal guardian is accused of abusing their children, the court may be inclined to grant unusually permissive privileges to grandparents.

    Child abuse includes cases of sexual molestation and domestic violence. In such cases, the parent might lose their parental rights.

    When parental rights are terminated, the grandparents may have a better case for more extensive grandparent visitation rights or even full child custody rights.

    Specific circumstances like this might require you to seek legal advice from a custody and domestic violence lawyer.

    How to Petition for Grandparents Rights

    To file a petition for grandparents rights in court, a grandparent must first determine whether there is a pending lawsuit between the parents.

    If the parents have an open case such as custody or divorce proceedings, the grandparent will need to file a Joinder and Request for Order to secure a court date.

    If no claim has been filed between the parents, the grandparent must file a new case with their unique Petition and Request for Order.

    Getting the legal services of a law firm is an excellent place to start. Family law firms with attorneys who help with day-to-day family law matters can also help with grandparents rights. Family law attorneys may also assist grandparents in submitting their petitions to a family court.