I’m Being Kept from My Grandchildren: What Are My Legal Rights?

Just as each state has different laws governing child custody arrangements among parents, each state also has different rules about “grandparents’ rights,” including when the court may intervene to award custody or visitation rights to a grandparent. 

Grandparents’ rights are not constitutional rights, and are a relatively new concept, first coming about sometime in the 1960s. Grandparents’ rights are created by state law, and each state’s law differs. However, states will generally recognize court orders from other states which award custody or visitation rights to grandparents, even if those rights differ from their own. 

Although the rules may differ, the overarching standard most courts use when determining custody and visitation issue, including those involving grandparents, is “the best interests of the child.” But the “best interests of the child” standard alone may not be a sufficient basis to determine your visitation rights as a grandparent, and some of the state laws granting grandparents visitation rights have been declared unconstitutional. 

In 2000, the United States Supreme Court, in the Troxel v. Granville case, found that a Washington state statute which allowed anyone to petition for visitation rights at any time, and authorized the court to grant visitation whenever it was in the best interests of the child, was unconstitutional because it infringed upon the fundamental right of parents to make decisions concerning the care, custody, and control of their children. 

In Troxel, the court found that Washington’s law was written too broadly and did not include any special factors or considerations that might justify the State’s interference with the parents’ fundamental right to make decisions concerning the upbringing of their children. In that case, the court noted that there is a presumption that fit parents act in the best interests of their children, and that courts should give special weight to parents’ decision about what is in the best interests of their child. 

Some state statutes list specific factors to be considered when determining the best interests of the child, others do not. These factors may include whether the child’s parents are deceased or divorced; whether the child was born out of wedlock; whether the child is in the custody of someone other than a parent or has lived with the grandparent in the past; whether the grandparent is the parent of the child’s deceased parent; what effect the grandparent’s visitation would have on the child’s parent; whether the grandparent or the child’s parent has a history of substance or other abuse; and the length and strength of the relationship between the grandparent and the child, among other factors. In some states, depending on the age of the child, the child is given some say in custody and visitation issues.

If you are seeking grandparent visitation rights in a state where the law lists no factors, you should be aware that the state law might be challenged on constitutional grounds similar to those in the Troxel case. 

In all cases, it is the grandparent’s burden seeking visitation rights to prove that the visitation would be in the best interests of the child. Many state visitation laws expressly provide that courts may not award visitation unless a parent has denied (and in some cases unreasonably denied) visitation to the grandparent. 

In many states, adoption of the child cuts off all rights of the grandparents unless the adoption decree specifically provides for visitation with the natural relatives of the child.

Each state provides its own rules for how and where a custody or visitation petition must be filed—in some states, it must be filed as part of a divorce or custody suit, and, in other states, the petition may need to be filed separately in family court.

If you have questions about grandparents’ rights in your state or want to explore whether you should file a petition for visitation or custody of your grandchildren, you can find a qualified family lawyer in your area to help you by quickly posting a summary of your legal needs on our site.