Under Kansas law, grandparents have the right to ask the court for visitation with their grandchildren. However, these rights must be balanced against the parents’ objections, if any, and the best interests of the child. This article provides an overview of the process and explains what grandparents will have to show in order to convince a judge to allow them time with their grandchildren.
When do requests for grandparent visitation arise?
These types of requests may come up under any circumstance in which grandparents are not allowed to visit with their grandchild, for example, when one of the child’s parents dies, and the child’s surviving parent prohibits his or her in-laws from seeing the child. Under these circumstances, the in-laws - as the child’s grandparents - can ask the court to order the surviving parent to allow them to visit their grandchild. However, grandparents cannot ask the court for visits with their grandchild if the child’s parents’ rights have been cut off or terminated by a previous court order. So, where a parent has lost all custody rights over his or her child, then that parent’s parents (the grandparents to the child) also have no rights to see the child.
How do I begin the process?
You have to file a petition (legal paperwork) for grandparent visitation in the county where the child resides with the child’s parent, guardian or other person with custody. If you already have an order for visitation with your grandchild, and you want it enforced, you will have to file a motion for enforcement; the court is supposed to give you a hearing within 21 days from the date your motion is filed.
What will I have to show the court in order to get visitation with my grandchild?
Generally, judges will evaluate two factors when deciding whether grandparents may visit their grandchildren. First, the grandparent must show that there is a “substantial relationship” between the grandparent and the grandchild, which means that you spend time with the child. But the grandparent–grandchild relationship doesn't have to be current; grandparents can meet this requirement by showing a past relationship with the child. If you have tried to be a part of the child’s life, but the child’s parent has been actively preventing you from seeing the child, it’s important to show the judge what efforts you have made to see the child.
Secondly, the grandparent must show that visitation is in the child’s best interests, considering the child’s health, safety and welfare. Judges want to know how the child will be affected by having contact with the grandparents. For example, the grandparents may want overnight visits with the child without being fully able to provide appropriate care. Or, there may be a lot of bad feelings and conflict between the parent and grandparent, which might make visitation a negative experience for the child.
Judges will also want to understand the grandparent’s relation to the child. The grandparent can be related to the child by blood or by marriage, such as a “step-grandparent” or a person who is the parent of the child’s stepparent.
The law presumes that a child’s parent is fit and will act in the child’s best interests. So, if the child’s parent objects to the grandparent’s visitation, courts will take that objection very seriously. In that situation, the grandparent would have a heavy burden of showing that the parent is not acting in the child’s best interest by contesting the grandparent’s request.
Are there any risks to pursuing grandparent visitation?
In Kansas, courts that are considering a grandparent’s request for visitation can award attorney’s fees to the child’s parent, unless the judge finds that such an order would be unfair. For example, if the judge finds that the parent’s objection to the grandparent’s visitation is reasonable, the grandparent may be ordered to pay the parent’s attorney’s fees and court costs.
If, on the other hand, the parent has been unreasonable in stopping the grandparent from seeing the child, or the parent violated a court order by preventing the grandparents from visiting, the judge would not order the grandparents to pay the parents’ legal costs.
However, there are many cases where both sides are reasonable, and they just disagree as to what is best for the child. In those cases, Kansas law still allows the judge to order the grandparents to pay the parents’ attorneys’ fees and costs. If the court doesn't award the parents their fees and costs, the judge has to find that such an award is inequitable or unfair.
How can I get custody of my grandchild?
If a state agency removes a child from the parent’s care, and the child is not placed with the other parent, grandparents can request that the court award custody to them. In this case the judge considers:
- the wishes of the parent, child and the grandparent
- how much the grandparent has been involved with the child’s care
- the exact circumstances that prompted the child to be placed with the grandparent, including whether there has been any domestic violence or whether the child is with the grandparent so the parent can work, and
- the physical and mental health of all involved.
There are other circumstances in which grandparents may seek custody of their grandchildren. If you don’t have a situation where your grandchildren have been removed from their parents’ custody, but you think they are being neglected or receiving inadequate care, you should consult an experienced family law attorney in your area to determine whether you can get custody and become their legal guardian.
Click here for the Kansas Judicial Branch website, which has links to the Kansas Judicial Council and helpful information on how to represent yourself in court.