Noncustodial Visitation in Regards to Grandparents

The Best Interests of the Child

The standard the court uses when making determinations about custody and visitation is to look at what would be in the child's best interests. The grandparents do not have an automatic right to see their grandchildren. Instead, they would have to prove to the court that maintaining a relationship with the youngsters benefits the welfare of the child.

If there is a well-established relationship between the grandparent and grandchildren, this will be taken into consideration when a judge is asked to make a ruling on the issue of noncustodial visitation in regards to grandparents.

Grandparent Visitation Laws

In the U.S., all 50 states have enacted legislation with respect to visitation rights for grandparents. The law varies from state to state on who can petition the court for visitation rights and the specific circumstances under which visitation will be granted.

Those in favor of grandparents of these rights argue that a positive relationship with a grandparent can only be of benefit to a child. If the grandparent and grandchild have already established a close relationship, then it is unfair to both of them to deny the grandparent access simply because the child's parents are divorced.

Some people have put forward various arguments against allowing grandparents court-ordered visitation with their grandchildren. Opposers contend that when a court of law is permitted to order noncustodial visitation with regard to grandparents, the state is interfering with the parents' rights to make decisions concerning the raising of their children. Grandparents who are difficult to get along with due to their disposition or habit of badmouthing one parent or the other might also have their access to their grandchildren restricted. Additionally, opposers stress that parents should be allowed to restrict access by grandparents with a history of abusing their own children.

Current Laws

Restrictive Visitation Laws

Restrictive visitation laws are in place in approximately 20 states. Under this type of legislation:

• Only grandparents can petition the Court for visitation
• The petition will only be granted in the event of a divorce or the death of one (or both) of the child's parents

Permissive Visitation Laws

As the name implies, permissive visitation laws allow grandparents to ask for visitation with their grandchildren without the restrictions listed above. Other family members or foster parents/grandparents may also ask the court to award them visitation rights.

The Visitation Rights Enforcement Act

Under the provisions of The Visitation Rights Enforcement Act, grandparents who have been granted visitation rights in one state are guaranteed that they can exercise that right in any state. Before this law was passed on 1998, grandparents could be granted visitation rights in one state but would have to re-petition the court if the grandchild moved to another state. This process was both stressful and costly.

Ruling on Noncustodial Visitation in Regards to Grandparents

In the Troxel v. Granville case, the U.S. Supreme Court was asked to rule on whether grandparents had the right to see their deceased son's children. The children's mother did not argue that her daughters should be able to see their grandparents, but felt that the amount of visitation requested was excessive.

The case was first heard in Superior Court, which granted more visitation than the mother thought was appropriate. She appealed the case to the Supreme Court and the appeal was allowed. The Court of Appeal found that the state should not interfere with a parent's right to raise their children in the way they see fit. The state should only interfere with this basic right in cases where the child is either being harmed or at risk of harm.

So if you're seeking visitation, be advised that it's best to try to work out a solution with the children's parents first before pursuing court action.

Additional Assistance

For more information on grandparent rights, contact a domestic issue lawyer or the National Senior Citizens Law Center.