Do Grandparents Have Visitation Rights in Delaware?

A look at grandparent visitation laws in Delaware.

By , Attorney

Parental rights to oversee their children's upbringing, including who they visit, are fundamental and protected by the Constitution. Yet, every state recognizes some form of grandparent visitation.

If a child's parent has cut-off your relationship with a grandchild, you may have legal recourse. Grandparents can secure some visitation with their grandchildren if certain factors are present, and the visits would serve the child's best interests. The unique circumstances of your case will affect whether grandparent visitation, or in some cases an award of custody, is appropriate. This article provides an overview of grandparent visitation and custody laws in Delaware. If you have questions after reading this article, you should contact a local family law attorney for advice.

Overview of Grandparent Visitation Laws

Although there isn't a federal law governing grandparent visitation rights, one Supreme Court case has influenced every state's grandparent visitation laws and caused some to be overturned. Troxel v. Granville involved a grandparent state visitation statute. Under Troxel, a judge must give special weight to a parents' visitation wishes. The fact that a child would benefit from time with a grandparent isn't enough. A grandparent must prove that a parent's objections to visitation aren't in the child's best interests and that visitation is essential to the child's well being.

Grandparent Visitation in Delaware

Grandparents, although not parents, have some special rights when it comes to spending time with their grandchildren. Although visits aren't automatic, a grandparent can petition (ask) a court for visitation under certain circumstances. Specifically, a grandparent can seek visitation if it's in the child's best interests, and:

  • one parent consents to the visits
  • the minor child has been neglected or abused in the parent's care
  • the parent is deceased, or
  • the parent objects to visitation, but the grandparent has shown the objection is unreasonable and that visits won't interfere with the parent-child relationship.

For example, in one Delaware case a grandmother sought visitation after the children's parents suddenly refused all visits. The court denied the request because the grandmother couldn't prove that the parents' objections were unreasonable. Specifically, the grandmother had defied the parents' wishes in the past by feeding the children junk food and taking them to the river's edge. Because the grandmother refused to comply with the parent's wishes, she wasn't entitled to visitation. The grandmother couldn't show that the parent's objections were unreasonable or that visits would be in the children's best interests.

When assessing a child's best interests, Delaware courts will look at the following factors:

  • the child's wishes
  • the child's relationship with grandparents
  • the child's relationship with parents
  • the child's adjustment to the local community
  • the grandparents' physical and mental health
  • the child's physical and emotional needs
  • any evidence of domestic violence, and
  • whether the grandparents have any criminal history.

A judge can also consider any other factor relevant to a child's best interests.

When Can Grandparents Seek Custody of a Grandchild?

A grandparent can't obtain custody unless a court has terminated parental rights. However, when a court terminates a parent's rights, even a non-blood relative, like a stepgrandparent can become eligible for custody. A court can give a grandparent custody of a grandchild when it would serve the child's best interests, and:

  • the parents' rights have been terminated
  • adoption is not possible or appropriate, or
  • the grandparent has served as the child's guardian for the past 6 months.

Specifically, in one Delaware case a grandfather and stepgrandmother were awarded custody of their grandchildren. The child's mother appealed the lower court's decision granting the grandparents custody. However, the court determined that the grandfather and stepgrandmother had already acted as guardians to the children for 6 months and the children's mother was not equipped or capable of caring for her children. Ultimately, it was in the best interests of the children to reside with their grandparents.

Adoption and Grandparent Visitation Rights

In most cases adoption severs all ties between natural parents and grandparents. A grandparent typically can't seek visitation once a child is adopted. Also, an adoption may terminate any preexisting visitation orders between the adopted child and grandparents, unless the grandparents can show that continued visitation serves the child's best interests.

For example, in one Delaware case, a set of paternal grandparents were awarded visitation with their grandchild. Subsequently, the child's father lost his parental rights, and the mother's new husband adopted the child. Although the court gave weight to the parents' wishes, the court determined that the child's best interests were served by preserving the child's relationship with grandparents.

If you have additional questions regarding grandparent visitation or custody in Delaware, contact a local family law attorney for advice.

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