One of the joys of being a grandparent is getting to spend time with your grandchildren and being involved in their lives. However, conflicts can arise if the grandparent’s relationship with their own child has become strained.
In some cases, a parent may wish to limit or even deny visitation between the grandparent and grandchild. This raises the legal question – can a parent deny a grandparent visitation rights?
What Rights Do Grandparents Have?
In the United States, the legal rights of grandparents vary widely depending on the state. There is no federal law that grants grandparents an absolute right to visit their grandchildren if the parents object.
Generally, parents have the right to make decisions regarding their children, including who the children are allowed to associate with. Some states, however, have enacted grandparents’ visitation statutes that can provide grandparents a legal means to seek court-ordered visitation or custody in certain circumstances.
Best Interest of the Child Standard
In all family law matters concerning minor children, the “best interest of the child” standard guides judges in making determinations. When considering grandparent visitation rights, courts will consider whether allowing visitation is in the best interest of the grandchildren.
Factors like the child’s age, the grandparent-grandchild relationship, potential benefits and any history of abuse/neglect by the grandparent may be considered.
Presumption Favoring Parental Decisions
Courts presume that fit parents act in their children’s best interests. As a result, a grandparent seeking visitation rights bears the burden of overcoming this presumption in favor of the parent’s visitation decisions. In order to grant visitation where the parents object, a grandparent has to prove that lack of visitation would significantly harm the child.
When Can a Grandparent Sue For Visitation Rights?
There are a few circumstances in which grandparents may be able to petition the court for visitation rights over a parent’s objection:
If One Parent Consents
If one parent agrees to allow visitation, but the other parent objects, grandparents have a stronger case for court-ordered visitation. The consent of one parent weakens the parental presumption against visitation.
Death of a Parent
If one of the grandchild’s parents dies, the deceased parent’s parents (the grandparents) may be able to obtain visitation rights more easily over the objection of the surviving parent.
Parental Separation or Divorce
If the parents separate or divorce, grandparents may be able to get visitation ordered as part of the custody determination process. Visitation is more likely if the grandparent’s own child gets primary custody.
If the child’s parents are determined to be unfit, the court may grant grandparents visitation while the parents go through drug treatment, parenting classes, or other remedial processes.
Grandparent Visitation Laws By State
Laws regarding grandparent visitation vary widely between states. Some states have very restrictive laws that make it quite difficult for grandparents to obtain court-ordered visitation, while other states are more permissive.
States With Broad Grandparent Visitation Laws
Some states have relatively broad grandparent visitation statutes that allow visitation to be granted as long as it is in the child’s best interest. These states include:
- Connecticut – visitation allowed if in best interest of child and would not interfere with parent-child relationship
- Hawaii – visitation allowed unless it would cause significant harm to the child
- Kentucky – visitation allowed if it’s in best interest of child and does not interfere with parent-child relationship
- Mississippi – visitation allowed if in best interest of child, rebutting presumption favoring parental decision
- New Jersey – visitation allowed if in child’s best interest based on various factors
States With More Restrictive Laws
Other states only allow grandparent visitation under narrow circumstances, like if a parent has died or is found unfit. These states include:
- Alabama – only if parent is dead and visitation is in best interest of child
- Delaware – only if parent is dead, missing, or unfit
- Idaho – only if a parent is dead, missing, or unfit
- Nebraska – only if parent is dead or parents never married and paternity never legally established
- Nevada – only if a parent is dead or parental rights were terminated
Some states like California, Texas, and Georgia leave the matter to the discretion of the judge in each individual case. The outcome will depend on the specific circumstances and the judge’s determination of the child’s best interest.
Overcoming Parental Objection in Court
For a grandparent to be granted visitation rights over a parent’s objection, they must file a petition with the family court and prove that lack of visitation would significantly harm the grandchild.
This is a very high legal standard to meet. Essentially, to override parental decisions judges must find that denying visitation would jeopardize the child’s health, safety or welfare.
Grandparents may use the following types of evidence:
- Expert testimony from counselors, psychologists, doctors, teachers etc. regarding potential harm to child from losing grandparent relationship
- The child’s preference – if the child is old enough, their desire to see grandparents can support argument that visitation is in their best interest
- Photos, cards, letters showing close grandparent-grandchild bond and how involved grandparent has been in child’s life
- Testimony about any hostility the parent has toward grandparent, and how this affects child
- Evidence of parental blocking of grandparent access without valid reasons
Overcoming the presumption favoring parental decisions is extremely difficult unless there are compelling circumstances indicating direct harm to the child if visitation is denied.
Grandparent Custody Rights
In certain situations, grandparents may be able to seek full legal and physical custody of their grandchildren. This is much harder to obtain than just visitation rights. For custody to be awarded over a parent’s objection, the grandparent must prove the parent is unfit or poses substantial harm to the child’s welfare. Circumstances where a grandparent may obtain custody include:
- Death of both parents
- Parental drug abuse, mental illness, abuse or neglect
- Abandonment of the child
- Parental incarceration
- Child protection involvement finding parent unfit
To gain custody, the grandparent must show they can provide a safe, stable home and that granting custody to them is in the child’s best interest. A grandparent’s advanced age or health conditions may impact the custody determination.
Before heading to court, it is advisable for families to first attempt settling their disputes through mediation. An experienced family mediator can often facilitate agreements between grandparents and parents regarding visitation that address the needs of all parties. Mediation is usually faster, less expensive and less adversarial than litigation. It can help preserve family relationships.
If mediation fails to resolve the grandparent visitation issue, consulting a knowledgeable family law attorney is essential before filing suit. Procedurally, grandparent visitation cases vary between states and navigating the family court process is complex. An attorney experienced with local grandparents’ rights laws can assess the case and provide sound legal guidance.
Very few matters create more familial strife than when grandparents are denied access to their grandchildren by their parents. While grandparents lack an absolute legal right to visitation, in many states they have avenues through the courts to seek time with their grandchildren over parental objection.
The decision ultimately rests with judges on what is in the child’s best interest. With proper evidence and legal support, grandparents may prevail, but overcoming the presumption favoring parental discretion is challenging. For the well-being of the entire family, mediation or collaborative legal processes are usually best before resorting to contested litigation.