Do Grandparents Have Visitation Rights in Vermont?

The role of a grandparent is distinct from a parent's role. Understandably, grandparents don't enjoy the same rights and privileges that parents do under the Constitution. Yet, for some children, a grandparent is the only parental figure they've known.

Virtually every state recognizes some form of grandparent visitation. The unique circumstances of your case will determine if court-ordered visitation is appropriate, and if so, how much. This article provides an overview of grandparent visitation privileges in Vermont. If after reading this article you have questions, contact a local family law attorney for advice.

Overview of Grandparent Visitation Laws

Parents' rights to raise and make decisions for their children are based in the U.S. Constitution. A grandparent's rights to care for or visit with a grandchild are always secondary to a parent's.

In the U.S., no federal grandparent visitation law exists. Instead, each state has created its own set of rules regarding grandparent privileges. Some states have had their grandparent visitation laws challenged in court, but most state grandparent visitation laws are upheld.

The Troxel v. Granville case is the closest thing our country has to a federal law on the subject. In Troxel, the U.S. Supreme Court heard a challenge on Washington's grandparent visitation statute. Ultimately, the Washington law was upheld; however, Troxel laid out some important requirements. Specifically, the Supreme Court stressed that a parent's rights come first and that grandparent visitation can't interfere with a parent's time. Moreover, courts must listen to a parent's objections to grandparent visitation. Although grandparent visitation may be awarded even when it's against a parent's wishes, the reasons for a parent's objections deserve consideration.

Grandparent Visitation in Vermont

A grandparent can't petition for grandparent visitation unless there's been a breakdown of the child's nuclear family unit. Specifically, a court won't order grandparent visitation unless one of the following circumstances is present:

• the child's parent is deceased
• the child's parent is mentally or physically unable to make a decision or unfit, or
• the child has been abandoned by the parent.

Even if one or more of the above factors are present, a court won't award grandparent visitation unless it's also in the child's best interests. For example, a court denied a grandmother's request for visitation because the child's parents weren't unfit. The grandmother testified that the child was bored and unhappy in her parents' care and that the house was sometimes dirty. The evidence of "bad" parenting wasn't enough for the court to award grandparent visitation. A grandparent must show that the child's health, safety, or welfare will be harmed if grandparent visitation isn't awarded.

In another Vermont case, the court reaffirmed a parent's right to determine what amount of grandparent visitation is appropriate, if any. In this case, the father sought to cut-off the grandparent's contact with his child. Although the child had a bond with the grandparent, the court deferred to the father because he was a fit and stable parent. Also, there was no evidence that the child would be harmed if grandparent visitation didn't occur.

When Can a Grandparent Obtain Custody of a Grandchild?

A court may award a grandparent custody of a grandchild only if a parent is unfit or the parents' rights have been terminated. Grandparents may receive special consideration in actions where the state has removed the child from the parents' home. However, in one Vermont case, a foster couple with no biological ties to the child was awarded custody over the child's biological grandmother. The court determined that the foster parents were better equipped than the grandmother to provide for and meet the child's needs. The court's decision was based largely upon the grandmother's history of defying court orders and allowing her son to keep the child in his home during his stints out of jail. In every case, a judge will evaluate a child's best interests and determine which of the competing parties is best able to meet the child's needs.

Grandparent Visitation After Adoption

Generally, placing a child for adoption severs any legal ties between biological grandparents and their grandchildren. When a parent's rights end, so do the grandparents' rights. However, in the case of adoption by a stepparent or close relative, grandparents and adoptive parents can enter into an agreement that allows for visitation even after an adoption is final. A judge will review the agreement to ensure that it serves the child's best interests. The court will consider the following factors:

• the child's preference, if old enough to express a preference
• the child's special needs, if any
• the child's relationship with the grandparent and effects of continuing the relationship
• the parents' and grandparent's ability to cooperate with the agreement's terms
• a guardian ad litem's or counselor's recommendation regarding grandparent visitation, and
• any other factor the court deems relevant.

Additionally, grandparents can seek a court order to visit or communicate with a grandchild following the child's adoption by a stepparent, if:

• the grandparent is the parent of the child's deceased parent or the parent of the grandchild's parents whose rights have been terminated
• the grandparent has requested a visitation order, and
• the court determines that grandparent visitation serves the child's best interests.

In one Vermont case, a court denied a biological grandmother's visitation request following her granddaughter's adoption. The grandmother initially received custody of her grandchild after the child's parents voluntarily relinquished their rights. She developed a strong relationship with her granddaughter, but regularly allowed the granddaughter to be cared for by the child's father (whose rights had been terminated) during his periods out of jail. The court determined that the grandmother didn't look out for the child's best interests and denied visitation as a result.

Grandparents hold a special place in many children's lives. Their role is unique and distinct from a parent's. In many families, grandparents provide a support and stability to both parents and grandchildren. When grandparents and parents can't get along, a grandparent may rush to obtain court-ordered visitation. A court will weigh a number of factors before requiring regular grandparent visits. If you have additional questions about grandparent visitation or custody rights in Vermont, contact a local family law attorney for advice.