Custody, Visitation, and Grandparent Rights

What can you do if a parent restricts your visitation rights to a young grandchild or you feel the child is in a problematic or dangerous living situation? All fifty states and the District of Columbia have variations of grandparent visitation statutes permitting them to petition a family court to grant the legal right to maintain relations with their grandchildren. However, state laws vary in crucial details as to who and under what circumstances these visitations can occur.

As many as twenty states’ visitation statutes are restrictive, meaning grandparents receive court-ordered visitation only in the cases of the parents divorcing or one or both parents have died. The remaining states have more permissive visitation laws allowing visitation without the instances of divorce or death of the parents.

In 2000, the US Supreme Court (USSC) in Troxel v. Granville tackled grandparent issues of visitation as a lower court rescinded the permissive grandparent visitation statute. The USSC agreed that parents have a fundamental right to make child-rearing decisions, but that the permissive visitation statute was not unconstitutional. Ultimately the state may not force a parent to permit grandparent visitations as the Supreme Court determined it a violation of the parents’ “fundamental rights and liberty interests… to make decisions concerning the care, custody, and control of their children.”

This ruling makes it legal for a grandparent to ask the court for visitation or custody; however, the parent’s rights will nearly always take precedence. Further, the USSC also ruled lower courts need to presume a child’s best interest is in consideration when a parent refuses a grandparent’s visitation request, compelling the grandparent to prove otherwise. Since this Supreme Court decision, most states have adapted their laws to align with the ruling.

A grandparent filing for visitation needs to prove a rational reason for the request to the court. Typically, this can be the desire to maintain the child’s right to preserve a strong bond with their grandparent. Filing for custody depends on several factors. Some states require at least one of the following situations before granting custody to a grandparent:

• One or both parents have died
• The parents are divorced or no longer a couple
• The parents are unfit due to alcoholism, drug addiction, criminal behavior, or mental illness that perpetuates neglect or abuse of the child
• One parent’s whereabouts are unknown, and the other agrees to grandparent custody
• Child protective services investigations, grant custody to the grandparents for the child’s safety
• The grandchild has been living with the grandparents when a situation occurs, such as a parent’s incarceration
• The grandchild is old enough to communicate that they want to live with their grandparents to a judge
• The court grants joint custody in the case of a young mother and a grandparent until the mother can care for the child
• Both parents die unexpectedly and the will names the grandparents as guardians

If the courts deny grandparent custody, they may still receive visitation rights which are easier to obtain, yet there is no guarantee. For example, suppose a grandparent can’t drive and therefore has difficulty transporting the child to the doctor, activities, or play dates. In that case, a judge may deny visitation rights as it is not the most stable situation for the child. A judge will also seek to keep the child in the same school, making the grandparents’ location a deciding factor in visitation.

Getting grandparent custody is very difficult in most situations and states, but even more so when the child’s family is intact. Grandparent custody and visitation cases are often fraught with emotion and unresolved conflict between the grandparents and parents. Before filing a child custody petition, a grandparent should try to solve the issues within the family system or with a neutral third party in arbitration before petitioning the courts. Parents have a right to raise their children as they prefer as long as it causes the child no harm. Speak with a family law attorney in your state to understand the specific laws and the likelihood of a successful challenge for visitation rights or custody of a grandchild.  

Please contact our Houston office today or schedule a consultation to discuss your legal matters. We would be happy to help you and welcome your call.