When things are going well in a marriage, the grandparents of the happy couple usually have little difficulty in seeing their grandchildren. The parents are often more than happy to let their children spend a few days away with grandma and grandpa so they can get some alone time as a couple. Unfortunately, when a breakdown in the family structure occurs and the result is a divorce, the effect on family relations goes well beyond the relationship of the two direct parties to the divorce.
Grandparents are often caught in the crossfire between the spouses. As a result, loving and long-term relationships between grandparents and their grandchildren may take the brunt of the collateral damage. This disruption can have a serious psychological effect on both the grandparents and the grandchildren, who may suddenly have their grandparents ripped from their lives. Such a situation raises the question of what rights grandparents have when parents refuse access to their grandchildren. Before acting rashly, it helps to know what rights exist for grandparents.
The History of Grandparents’ Rights
In the past, parents have had full and indisputable rights regarding decisions made that affect their children. This right was affirmed by the US Supreme Court in the case of Troxel v. Granville. In that case, the Court ruled that parents have a Constitutional right to direct the upbringing of their children. That decision was made in response to a law passed in Washington State which allowed any third party to petition the state court for child visitation rights over the parents’ objections.
The majority opinion of the court left the door open for states to pass laws that could allow some visitation rights for grandparents as long as such laws are based upon a “compelling governmental interest” that presumably supports visitation rights. The area of the law that deals with grandparents’ rights has grown in recent years as a direct response to that decision.
The laws in place that deal with grandparents’ rights vary greatly from state to state. Generally speaking, grandparents are rarely recognized to have any legal rights regarding visitation with their grandchildren. The law, as it currently stands in most states, supports the right of the parents of the children to control the amount of time grandparents can spend with their grandchildren.
What You Should Know About Visitation Rights
As noted above, the right of a grandparent to visit grandchildren varies from state to state. In recent years, some states have begun to grant grandparents limited visitation rights based upon the requirements of Troxel v. Granville. Recall the mention of a “compelling government interest” in that decision? It is generally accepted that one such interest of the national government is to ensure the safety of children. Many states have interpreted this to mean that grandparent visitation rights can be petitioned for if it is in the child’s best interest. There are other considerations which may influence the court, including if the child or children are in danger of physical or emotional injury.
Visitation for Grandparents in Massachusetts
Almost all state laws pertaining to grandparents’ rights require the petitioner to show that the child will suffer some sort of serious injury if visitation rights are not granted. For example, in the state of Massachusetts, grandparents cannot legally petition for visitation rights with grandchildren if the parents are married. However, if the parents are divorced, separated, or one of the parents is deceased, the law does permit grandparents to petition for limited visitation rights with their grandchildren.
The court is directed to consider the best interests of the children, but the burden of proof seems to be on the grandparents to show that the child would suffer harm if contact with the grandparent was terminated. It is important to remember that emotional and psychological harm can be considered harm under legal terms such as these. If you have any questions about your rights as a grandparent, make sure to contact Shapiro Mediation today for guidance and legal assistance.
Family Law and Grandparents’ Rights
While it may seem like an uphill battle if you are a grandparent, the area of grandparents’ rights is still evolving. Different states have different provisions which address the conditions upon which visitation rights can be granted. The wording of statutes varies from state to state, but many are similar in the stated burdens of proof that must be shown by petitioners.
Of course, similar statutes does not mean that these statutes will be interpreted the same by different state courts. While states rarely allow petitioning for visitation rights if the parents of the children are still married, most states allow the process to begin if the parents are either divorced, separated, or if at least one of the parents is deceased. Some states direct the court to consider the child’s wishes.
Most states, but not all, indicate that adoption of the child cuts off any request for visitation rights, although several of those states allow an exception if the child is being adopted by one of the biological parents or sometimes a close relative. Perhaps the most common element found between the laws in all fifty states is a reference to consider the best interests of the child. The current state of grandparents’ rights as noted in the Massachusetts example above is a good example of the law in many states.
In states that provide visitation exceptions, the grandparent must file a petition with the appropriate court. Regardless of the state, the grandparent who is petitioning for the visitation or custodial rights has the burden of proof to support the granting of visitation. Depending upon the jurisdiction, the burden varies from being “in the child’s best interest” to proving that denial of visitation rights will cause “significant harm” to the child. The existence of a prior relationship between the petitioning grandparent and the grandchild plays a role in the ultimate court decision regarding what, if any, visitation will be approved.
The stronger a prior relationship is shown to be, the more likely the chance that some type of visitation will be approved. Some states reference whether the child has previously lived in the home of the grandparent as one of the factors that the court will look at when considering the granting of visitation rights. When a specific timeframe is referenced, it usually looks for a period of six months to one year of residence with the petitioning grandparent.
Visitation Rights of Grandparents
Please keep in mind that the information just presented relates to visitation rights of grandparents, not custodial rights. These laws are not used by grandparents for the purposes of obtaining legal child custody. The elements that courts look at when considering granting legal custody of a child are not the same as the visitation laws reviewed above.
If you are involved in a legal dispute involving any aspect of grandparents’ rights, Shapiro Mediation can help. Let one of our family law mediation experts assist you. Our lawyers can take you through the entire process, from start to finish – getting you the visitation rights you deserve and are entitled to under the law. Contact Shapiro Law Group today for a free consultation at (339) 298-7733.