Life-altering changes to a family structure, like divorce or a parent’s death, can affect a grandparent’s relationship with a grandchild. Sometimes, the custodial or surviving parent may try to limit the amount of time the kids spend with their grandparents. This article will explain when and how you can ask for time with your grandchildren.
Under Kansas law, grandparents have a legal right to request court-ordered visitation with their grandchildren after a divorce, the death of a parent, or other legal proceeding involving child custody. If the grandparents can prove that they’ve established a substantial grandparent-grandchild relationship and that visitation is in the best interest of the children, then a court may allow visits.
The grandparent asking for visitation has the “burden of proof” (the duty to provide sufficient evidence) to prove to a judge that a substantial grandparent-grandchild relationship exists and that visitation is in the child’s best interests considering their health, safety, and general welfare.
First, you must be able to show the court you have substantial relationship with your grandchild, which you can show by describing:
Your relationship does not necessarily need to be current. For example, if your grandchild’s parent has interfered with your present relationship, you should detail all the efforts you’ve made to see or speak to your grandchild.
Once you’ve shown a judge that you are in fact close with your grandchild, you must prove that your visits would be in your grandchild’s best interests. Family courts in Kansas presume that fit parents will act in the best interests of their children, so a parent's opinion on grandparent visitation carries special weight in court. If your grandchild’s parent objects to you spending time with the child, you must be able to demonstrate that the parent is being unreasonable.
The court considers a variety of factors to determine if grandparent visitation is in the child’s best interest, including potential disruptions to the child’s usual schedule or routine, and increased conflict with the child’s legal parent. Since courts tend to defer to the child’s parents over the grandparents, you should know that a court will likely adopt the parent’s proposed parenting schedule, unless you can show that preventing you from seeing the children is not in the child's best interests.
Your grandchild’s parents do not need to have been married in order for you to ask the court for grandparent visitation.
You don’t need to be related to your grandchild by blood to ask for court-ordered visitation, but you do need to be a legal parent of one of the child’s parents. For example, grandparent visitation rights extend to step grandparents but not to other relatives, great grandparents, or third party caretakers.
If a stepparent adopts your grandchild after the death of one parent, you can ask the court for visitation over the surviving parent’s objection. For example, if you are a paternal grandparent and your grandchild’s father—your son— dies, you can ask for visitation, even if a stepfather adopts your grandchild after the mother remarries. If your grandchild is placed for adoption after both parents die, your grandparent visitation rights terminate along with the biological parents’ rights.
Grandparent visitation rights flow from legal parents’ rights, so a stepparent adoption after divorce or separation transfers these rights to the parents of the stepparent. If a stepfather adopts your grandchild after divorce or separation, only the stepfather’s parents and maternal grandparents can exercise grandparent visitation rights, even if the child’s biological father agrees to you spending time together.
There is a financial risk to asking the court for grandparent visitation because you could be held responsible for your grandchild’s parent’s attorneys’ fees and costs associated with the proceeding. In Kansas, family law courts may order grandparents who bring an unsuccessful request for visitation to pay the parents’ legal fees and costs, unless the judge decides it would be unfair based on the parents’ behavior.
For example, the judge might deny a request for attorneys’ fees and costs if the parents have unreasonable objections to your visits or have interfered with your grandparent-grandchild relationship by acting vindictively. But if they simply disagree with you about what’s best for the child, and the judge rejects your request and accepts the parents’ limitations on your visits, the court can order you to pay the parents’ legal costs.
You can request visitation by filing a “petition” (legal papers) in the district court for the county where your grandchild lives. If you already have a grandparent visitation order, but you want more time or the child’s parent is preventing you from visiting, you can ask the court to modify (change it) or enforce the order. If you have questions, you should speak to an experienced family law attorney, who can help you navigate this process.