Grandparents, stepparents, and other caretakers often form deep and loving attachments with the children in their lives. Yet when death, divorce, or estrangement tears families apart, these caretakers may find themselves without any legal right to maintain contact with the children they love. All 50 states and D.C. currently have some type of “grandparent visitation” statute through which grandparents—and sometimes others (foster parents and stepparents, for example)—can ask a court to grant them the legal right to maintain their relationships with beloved children. But state laws vary greatly when it comes to the crucial details, such as who can visit and under what circumstances.
Approximately 20 states have restrictive visitation statutes, meaning that generally, only grandparents can get a court order for visitation and only if the child’s parents are divorcing or if one or both parents have died. In a restrictive state, even divorced parents who agree about preventing grandparent visitation have the right to keep the grandparents away. However, like Utah, many states have more permissive visitation laws that allow courts to consider a visitation request even without the death of a parent or the dissolution of the family, so long as visitation serves the child’s best interest. Others allow caretaking adults besides grandparents to petition for visitation. Still, these states usually require that the caretaker have a history of living in the home with the child for a certain period of time in order to be able to file the request. Parents have challenged restrictive and permissive visitation statutes arguing that the laws infringe on parents’ rights to raise their children as they see fit.
The Supreme Court Decision
In 2000, the United States Supreme Court (USSC) tackled grandparent visitation rights’ critical question. In Utah case, a lower court struck down a permissive grandparent visitation statute, and the case moved to the Supreme Court. The court agreed that parents have a fundamental right to make decisions about raising their children. But it did not agree that the permissive visitation statute was unconstitutional or that allowing a nonparent to petition for visitation rights would amount to an assault on the family unit’s integrity. In other words, grandparents can ask the court for visitation or custody, but a parent’s rights will almost always take precedence. The court also ruled that lower courts must presume that it’s in a child’s best interest when a parent refuses a grandparent’s request for visitation, and the grandparent must prove otherwise.
How Does the Supreme Court Case Affect Grandparents?
Many states have visitation laws similar to Utah. These states don’t see grandparent or caretaker visitation as a severe restriction on a parent’s rights to control their children’s upbringing. Instead, the courts classify visitation as only a slight burden on that right. So, if a grandparent files for visitation, the grandparent only needs to provide the court with a rational reason for the request. Preserving the right of children to maintain strong bonds with their grandparents generally qualifies as such a reason. Since Troxel, most challenges to state laws regarding grandparent visitation have failed, with courts finding the statutes constitutional.
Many states have amended their grandparent visitation laws to be consistent with Troxel’s ruling that the starting presumption should be in the parents’ favor, and judges in these states will undoubtedly be more careful to take parents’ wishes into account when resolving disputes.
The U.S. Supreme Court decided that the application of the Utah statute violated Granville’s right as a parent to make decisions regarding the “care, custody, and control” of her children. The Court, though, did not make a finding on whether all non-parent visitation statutes violate the constitution; it restricted its decision to the Washington statute in question. As-is that law would have permitted a court to overturn a parent’s decision about the visitation of a grandparent or any other person seeking to obtain visitation rights, even if the parent was perfectly fit to make such a decision. The statute allowed any person to petition for visitation rights and allowed a judge to grant visitation if the judge determined that it was in the best interest of the child, effectively overruling the fit parent’s decision. The Court held that, by granting judges this power, the Utah statute violated parents’ fundamental right to raise their children.
The Troxel Effect
Because the Supreme Court did not make a finding that visitation laws are unconstitutional per se, every state still allows third-party petitioners to seek visitation rights. Many states, particularly those with permissive statutes, consider third-party visitation rights as a privilege that only imposes a slight burden on parents’ right to control the upbringing of their children. After the ruling in Troxel, however, states now give substantial deference to a fit parent’s decision of what is best for their child when weighing whether to grant visitation rights. Of course, someone wanting to understand third-party visitation norms in their state should talk to a trusted family law attorney in their area.
What Steps Can I Take?
Parents often want to hold on to as much time with their children as possible, even if that means denying a grandparent time with the child. If a parent denies your request for visitation with a grandchild, don’t run to court. Talk with the parent (or parents) to see if you can agree on a visitation schedule. If a conversation isn’t possible or you can’t agree, you might want to consider requesting a mediation session with the child’s parents. Some state courts won’t consider a petition for visitation until the parties have attended mediation together. Mediation means that you hire a neutral third party to help all of you create a legally binding agreement that everyone can respect and live with. The goal of mediation is not for the mediator to force an agreement but to facilitate an open conversation between the parents and grandparents.
If you’ve tried talking to your grandchild’s parent or mediation has failed, and you’re still not getting anywhere, you can file a petition for visitation with your local court.
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.
What Should I Do if I Want Grandparent Visitation?
If you are concerned about the prospect of losing time with your grandchild because your child is getting divorced, talk to your own child about getting to spend time with your grandchild during your child’s own parenting time. This is probably the simplest and least stressful option. If your child’s parenting time is limited, or he or she seems unwilling to share it with you, you could consider filing a petition for grandparent visitation, but this could put you at odds with one or both of your grandchild’s parents. Even if you were to win the court case (an uphill battle), there would be a personal cost, and you should imagine the stress it could put on your beloved grandchild.
If you are considering suing for grandparent visitation because your own child has passed away or is missing, and you don’t want to lose your relationship with your grandchild, it is probably still best to first go directly to the child’s parent, express your desire to remain close to your grandchild, and try to work out an arrangement. He or she may welcome the support and assistance of another loving adult in the child’s life, and dealing directly with your grandchild’s parent will not feel as threatening to them as being served with a lawsuit.
If you and your grandchild’s parent do not have the type of relationship that would allow you to work out such an arrangement, filing a petition to gain visitation might be your only option. You should be aware that you will have to be able to show abuse or neglect against your grandchild’s parent in juvenile court, which may be difficult to do. Be sure to work with an experienced, ethical Ascent Law Firm attorney will help you objectively evaluate your likelihood of success, and advocate for you in a way that doesn’t strain relationships unnecessarily.
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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