Do Grandparents Have Visitation Rights in Utah?

An overview of grandparent visitation rights in Utah.

In many families, both parents and children look forward to grandparent visits. Some grandparents provide emotional support or childcare assistance to exhausted parents and shower their grandchildren with attention and love. However, when parents divorce or separate, a parent may decide to cut off visits to grandma or grandpa. If you've been an involved grandparent, who's suddenly prevented from visiting with your grandchild, there's hope.

There is legal recourse for grandparents who want visitation with their grandchild. A judge will consider the grandchild's best interests, among other factors, to determine if grandparent visitation is appropriate. This article provides an overview of grandparent visitation rights in Utah. If after reading this article you have questions,contact a local family law attorney for advice.

Overview of Grandparent Visitation Laws Under Troxel

Grandparent visitation rights aren't found in the Constitution and there's no federal law regulating grandparent privileges. Instead, each state has enacted its own laws governing grandparent visitation rights. Grandparent visitation laws vary from state to state, but the U.S. Supreme Court has outlined some basic rules governing grandparent visitation.

In 2000, the Supreme Court issued its decision in Troxel v. Granville. The case challenged the constitutionality of Washington's grandparent visitation law. The Troxel decision requires a judge to consider a grandchild's best interests in any case involving grandparent rights. A court must presume that a parent's prevention of grandparent visitation is appropriate. Finally, a court must consider a parent's reasons for prohibiting grandparent-grandchild visits. The Troxel case reaffirmed parents' rights, while still acknowledging that grandparent visitation may be appropriate in some cases.

Grandparent Visitation in Utah

Utah law presumes that a parent's decision to allow or prevent grandparent visitation is in the grandchild's best interests. A grandparent seeking visitation must overcome this presumption and prove that grandparent visitation benefits the grandchild. A judge will consider the following factors to determine if grandparent visitation is necessary:

  • the grandparent is a fit and proper person to exercise visitation with the grandchild
  • the grandchild's parent has unreasonably limited or denied visitation between the grandchild and grandparent
  • the grandchild's parent is unfit or incompetent
  • the grandparent has acted as the grandchild's caregiver or otherwise had a substantial relationship with the grandchild and a loss of that relationship will harm the child
  • the child's parent has died or become a noncustodial parent through divorce or legal separation
  • the child's parent has been missing for an extended period of time, or
  • grandparent visitation serves the grandchild's best interests.

In one Utah case, the court limited grandparent visitation because it interfered with the mother's parental rights. The grandchild lived with her father and grandparents following the parents' separation. The grandparents petitioned the court for visitation after the grandchild's father passed away. The lower court originally awarded substantial grandparent visitation – 36 hours per month. However, the appeals court determined that the grandparents hadn't shown that the grandchild would suffer harm if the court denied visitation. The case was reversed and grandparent visitation was cut down to a few hours a month. What this ruling demonstrates is that a grandparent's visitation rights can't infringe on parents' fundamental rights to raise their own children. When balancing a parent's rights and grandparent visitation privileges, a parent's rights will always come first.

When can a grandparent obtain custody of a grandchild?

Parents have a constitutional right to raise and care for their children. A grandparent can't intervene and obtain custody of a grandchild unless the child's parent is unfit or has voluntarily terminated parental rights. Specifically, Utah law allows a third party individual, such as a grandparent, to obtain custody when:

  • the grandparent has intentionally assumed the role and parental obligations of a parent
  • the grandparent and grandchild have a strong emotional bond and parent-child type relationship
  • the grandparent has contributed emotionally or financially to the child's well-being
  • the grandparent is not financially compensated for his or her assumption of the parental role
  • the grandchild's best interests are served by continuing the grandparent-grandchild relationship
  • the grandchild would be harmed by the loss of the grandparent-grandchild relationship, and
  • the grandchild's parent is absent or has abused or neglected the child.

For example, in one Utah case, a court denied a maternal grandparents' request for custody. The grandchild's mother had died and the father had only recently become a part of the grandchild's life. The court denied custody because the grandparents were unable to show that the father had abandoned, abused, or neglected the child. A parent's temporary absence isn't enough for a grandparent to obtain custody of a grandchild.

A grandparent has a heavy burden to prove that the grandchild's parent can't meet basic parenting obligations. Utah law assumes that parents act in their children's best interests and a grandparent seeking custody must show otherwise. A parent must be unfit or missing from the picture before a grandparent can petition for custody of a grandchild.

Can a biological grandparent obtain visitation with an adopted child?

Adoption cuts off a biological parent's rights to a child, as well as grandparents' rights. Likewise, if a parent's parental rights are terminated, a grandparent (the parent's parent) will also lose any visitation privileges with the grandchild. Some exceptions apply in the case of stepparent adoptions or an adoption by a biological relative.

Specifically, in one Utah case, a judge denied a paternal grandparent's request for visitation. The grandchild's father (and grandparent's son) died before the grandchild was born. Shortly after the grandchild's birth, the child's mother relinquished her parental rights and placed the child up for adoption through an agency. Although the paternal grandparents tried to intervene and prevent the adoption, the court determined that they had no standing. The grandparent's legal rights were terminated upon their son's death.

Grandparents have visitation rights under Utah law. However, those rights are always secondary to a parent's rights. In certain situations, a grandparent may be entitled to visitation with a grandchild as long as the visits don't interfere with the parents' rights, and they serve the grandchild's best interests. If you have additional questions about obtaining grandparent visitation with or custody of a grandchild in Utah, contact a local family law attorney for advice.

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