As a grandparent, do you have the legal right to visit with your grandchildren? With growing frequency, we are seeing heart-wrenching custody contests between grandparents and parents depicted in movies and television dramas. But what does the law provide? Do different states apply different legal standards? What if one or both parents oppose visitation? While it is best to consult with a family attorney about your specific concerns, there are some general guidelines that may help as you decide whether to pursue visitation as a grandparent.
Do Grandparents Have Visitation Rights?
Yes. But these rights are not absolute. By statute, the court “may” grant reasonable visitation rights to a grandparent. As with any custody case in California, the Court will decide based upon the child’s “best interest” such that each case is very fact-specific. However, if the child’s parents agree that grandparents should not be granted visitation rights, the legal presumption shifts automatically against grandparents.
At that point, they have an extra legal hoop to jump through which is far higher than the “best interest” standard. While it is true that grandparents’ right of visitation is codified into state law, it is a secondary right where the court weighs heavily a parent’s belief about what is best for his or her child.
How Do Grandparents Get Visitation?
Every family and situation is different. Ideally, the grandparents would be able to avoid the courtroom and talk to the parent or parents and arrange visitation on a voluntary basis. If this cannot be achieved, there are two options. In either instance, the court will also apply the “best interest” standard at the outset, which grants the court ultimate discretion to determine what is best for the minor child.
The first route involves the grandparents petitioning the court during an existing family court case involving custody of the children filed by either parent. Or, secondly, the grandparents can file an independent action for visitation, understanding that if the parents are currently married and cohabiting, the case becomes more difficult and the court has very narrow authority to grant visitation – unless one parent formally joins in the petition.
What if a Parent is Deceased?
Grandparents, as well as siblings, have reasonable visitation rights with the children of a deceased parent under a third separate legal framework. Again, the court will consider the “best interest” of the grandchildren in this regard. Additionally, you will want to keep in mind that the amount of time spent with the grandchild prior to the application will be strongly considered by the court.
If the surviving parent is shown to be unfit and a dependency court action is initiated, grandparents may also request custody as well as visitation. However, “unfit” is a very high bar. I am seeing this type of legal challenge dramatized more frequently than ever in such movies as 2017’s “Gifted”, the latest season of “Big Little Lies” or 2019’s “The Art of Racing in the Rain” all of which resulted in custody being ultimately settled with the natural parent.
Laws Vary by State
States vary in setting laws around grandparents’ rights to visitation. Here is a partial list of some of the grandparent visitation laws by state:
The law in this area changes as new case law is made which interprets the statutory framework. As always, consult with a professional family law attorney in your area for the most applicable legal advice germane to your specific concerns.