Grandparents Visitation Rights

Every state lets elderly grandparents petition to visit grandchildren.

Do grandparents have visitation rights to their grandchildren?

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Answer Traditionally, the common law denied grandparents visitation with a child over a parent's objections. But since 1965, all 50 states and the District of Columbia have enacted legislation enabling grandparents to petition the courts for visitation rights with grandchildren. The laws do not make granting of visitation rights automatic -- they merely give grandparents the right to ask for a visitation order.

Who may petition for visitation?

Answer Many states permit only grandparents to petition for visitation, but some have extended the right to other relatives, such as great-grandparents, aunts, uncles and siblings, and even non-relatives with whom the child has a close relationship. In these and other areas, state law governs.

Under what circumstances may a petition be filed?

Answer Most commonly, a grandparent (or other permitted third party) may petition for visitation after the death of a parent or upon divorce of the parents. Some statutes allow petitions when a parent is incarcerated, when a child is born out of wedlock, and when the child has previously lived with the grandparent.

What standard is used in deciding whether to order visitation rights?

Answer In most states, the court must decide whether visitation is""in the best interest of the child"" A few grandparent visitation laws list specific factors the court should consider, such as the prior relationship between the grandparents and grandchildren, the mental and physical health of the parties, and the preference of the child, if the child is old enough to express a preference.

Will visitation be ordered after a child is adopted?

Answer Under state adoption laws, an adoption completely terminates the legal relationship between the child and the birth parent, and most courts have said that the relationship with the biological grandparents is terminated as well. When a grandchild is adopted by a stepparent (as when the grandparent's child has died) or close relative, many state laws provide that the adoption does not automatically rule out grandparent visitation rights.

Will visitation be ordered when the child is in an "intact family"?

Answer No state statute specifically allows grandparents to seek visitation when the nuclear family is intact, and it is extremely rare for a court to grant visitation under such conditions. The decisions made by parents about what is in their children's best interest will generally not be questioned by a court unless there is evidence of abuse or neglect.

Must visitation rights be decided in court?

Answer In some jurisdictions, judges refer many child custody and visitation disputes to mediation as an alternative to trial, and in some court systems referral of visitation cases to mediation is mandatory.

What is "kinship care"?

Answer Kinship care providers are non-parent relatives who have become the primary or sole care givers for children whose parents are unable to care for them. These are often older relatives, and particularly grandparents. More than three million children in the U.S. live with older relatives, and in at least one million homes a grandparent is the sole or primary care giver.

What is the legal relationship of a child to a "kinship care giver"?

Answer Many kinship caregiving arrangements are informal, but a grandparent caring for grandchildren should consider establishing a more formal legal relationship -- custody, guardianship or even adoption -- in order to make it easier to do the things that must be done to care for the child -- register the child for school, for example, or obtain medical or dental insurance, apply for public benefits, or get health insurance. In some situations, where a state agency has intervened to remove a child from a dangerous home, the child may be placed ? with relatives as a foster child; in such an arrangement, legal custody generally remains with the state.

Some states have established mechanisms to allow enhanced authority for kinship caregivers without limiting the role of the parents, such as "consent" legislation, under which the child's parents can authorize another adult to obtain medical, surgical, dental or mental health treatment for children in their care. Some states also now allow for "standby guardianship," which allows a parent to designate a guardian for a child in the event of the parent's death or incapacitation.

Source: American Bar Association, Legal Guide for Older Americans, 1997

See also:


Guardianship Alternatives

Grandparents' Rights

Living Wills, Powers of Attorney

Advance Directives

Elder Abuse

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