Grandparents' Rights to Custody and Visitation

If you ask your friends or colleagues, most of them will tell you that grandparents do not have a common law right to see their grandchildren if the parents object. These people are right in many respects. Interestingly, there is no basis in constitutional law regarding grandparent visitation rights in the United States. However, it is interesting to know that grandparents can be entitled to visitation and custody rights with grandchildren in some cases.

In order for a grandparent to obtain visitation rights, the grandparent may have to present evidence to the court that the absence of visitation rights would be harmful or detrimental to the child’s health and welfare. Parents have a fundamental right to the care, custody, and management of their child. Therefore, for such external interference to be imposed, the grandparent generally has to show that there is a sufficient reason for the court to allow visitation. It is often difficult to prove harm to the child if visits are not granted. Some courts or judges may also fear that allowing grandparent visitation rights could be harmful to parental authority. It could also create intergenerational disputes which could be even more detrimental to the child and/or be contrary to the child’s best interest. Courts often recommend that parent and grandparents reach an agreement out-of-court. However, the laws related to grandparent visitation rights are often changing and developing.

Under specific circumstances, grandparents can be granted custody rights for the child. When one parent is deceased, the surviving parent, if deemed fit, is typically preferred for custody. But if both parents are deceased, the courts may decide to award the custody of the child to the grandparents, since a blood relative is often preferred. Even in this situation, the grandparent has to present key evidence to the court that the child would be better off if he/she had custody of the child compared to other blood relatives or third parties. The court can make its decision taking into account the age, health, and financial ability of the grandparent to properly support and care for the child.

For the latest on laws and developments in your jurisdiction concerning grandparent custody and visitation rights, you should consult with an attorney in your area.