Families come apart for numerous reasons: death, divorce, abuse, imprisonment, long-term separation (e.g., military deployment), and more. In these instances, sometimes the grandparents are the most stable guardians in a child’s life. Despite this, grandparents do have automatic legal rights regarding their grandchildren, though specifics regarding custody vary from state to state. To make sure your relationship with your grandchildren doesn’t end after their parents’ divorce, imprisonment, or other situation, do your research on what basic rights you have as the grandparent.
All states recognize some form of grandparent’s rights to custody and visitation of their grandchildren. However, these are not constitutional, rather, they stem from state legislative decisions made over the past four decades. There are some pertinent federal laws for grandparents, such as the Parental Kidnapping Prevention Act, which guarantees recognition of state custody decrees in all other states, and federal legislation from 1998, which requires states to acknowledge and enforce grandparent visitation orders from other states. Additionally, all states adopted the Uniform Child Custody Jurisdiction and Enforcement Act, a law with similar provisions in all states ensuring recognition and enforcement of valid custody orders from other states.
Some states’ supreme courts, however, have declared statutes allowing grandparent visitation to be in violation of parental rights and thus unconstitutional. One Washington State case upheld such a decision, affecting precedent in similar cases.
For grandparents to win visitation or custody rights, courts must take into account certain considerations. Visitation and custody requirements differ from each other and from state to state. Grandparents should familiarize themselves with the conditions for each before filing a petition.
A custodial or visitation rights determination must consider what is in the best interest of the child before awarding either to a grandparent. Some states have listed factors for court consideration, while others leave it to the courts to establish this list. These factors can include: the needs, safety, and welfare of the child; parental or grandparental ability to care for the child; desires of parents or grandparents; (the children’s desires if they are old enough to make decisions); type of relationship between grandparent and child; any evidence of abuse or neglect in the relationships or substance abuse by parent or grandparent; and the relative distance between where the child currently lives and the custodial applicants.
Grandparent Custodial/Visitation Requirements
In instances wherein the parents are alive but the grandparents seek custody, grandparents must prove that neither parent is capable of raising the children properly and that the grandparents can do so. This can be difficult if the parents do not want this to happen. If the parents are dead, most states include grandparents in custodial considerations.
There are several conditions grandparents must meet for the courts to award them visitation rights. These vary from state to state as well, but most of them include determination of parental marital status, limitations of the rights if both parents are alive, and refusal of visitation in the event of an adoption by another parent or grandparent, among other conditions. Once courts have evaluated all applicable conditions, grandparents must prove to the courts that visitation rights are in the best interest of the child.
Staying informed of your rights as a grandparent can help you find the best situation for you and your grandchildren during the turmoil that lies in the wake of a marriage ending. Remember to educate yourself as states view the legal rights of grandparents differently. Keep the best interests of your grandchildren in mind throughout the process, as their comfort and mental wellbeing are the most important factors.