FAQ: Divorce

Grandparent Visitation Rights After Divorce

Divorce is one of the most difficult experiences that anyone can go through. The effects of divorce on a couple and their children are well documented. What may be less talked about is the impact that divorce has on the extended family. The parents and the siblings of each spouse often deal with their own sense of loss. If you add to this stress, the fear that they will lose their relationship with their nieces, nephews, or grandchildren you can understand why these parties want to know if they have any legal right to see the children they love. This becomes especially important when one parent is given sole physical custody of the child. What rights do the relatives of the other parent have to visit the child?

The rights of aunts, uncles and grandparents, also referred to as third parties, are limited. This is because there is a well recognized right for parents to decide what is in the best interest of their child. If the parents of the child do not arrange for visitation rights for other parties, the court is generally unlikely to do so. The laws that govern visitation issues vary from state to state but most states will not even consider giving visitation rights to anyone other than a grandparent. All states have some kind of visitation rights statute for grandparents.

Most states will allow grandparents to seek visitation rights when the grandchild's parents are getting divorced or if their child has died. They do no allow other third parties to request visitation. Some states are less restrictive and will allow grandparents to request visitation even though there has not been a divorce or death. Only a few states will give visitation to individuals other than grandparents and only if that person is a close relative or a parent figure to the child.

Getting past the state statute is only the first step. If state law will allow a grandparent to be considered for visitation rights, the next step is for the court to determine if visitation is appropriate. This is done by establishing that visitation would be in the best interests of the child. Instead of focusing on what the parents would like, the court tries to place itself in the position of the child in order to determine what is best.

Even if the court finds that visiting with grandparents would be in the child's best interest that does not guarantee they will be awarded visitation rights. Some courts have found that even though it may be in the child's interest, they cannot justify interfering with the parental decision to deny visitation without special circumstances. Therefore, if the parents are fit parents, it should ultimately be up to them to decide who visits their child. The court does not want to substitute its own judgment for the judgment of the parents.

Although every state now recognizes that the relationships between grandparents and grandchildren is one that deserves legal recognition, the level of protection the law gives to grandparents varies tremendously from state to state. Due to the long established principle of allowing parents to make vital decisions about what is in the best interests of their child, a grandparent seeking visitation rights will generally face an uphill battle. For many grandparents, mending relationships with the custodial parent is the best hope for maintaining a relationship with their grandchildren.

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