More grandparents seek visitation

It’s natural for grandparents to want to be a part of their grandchildren’s lives. But in some families, hard feelings can develop, and one or both parents may decide to exclude grandparents from seeing the children. Do grandparents have a right to go to court and demand “visitation”?

That’s a very difficult question, and the answer depends a great deal on the state where everyone lives and particularly on the specific family circumstances. But it’s a question that’s coming up more and more often, as grandparents – and in some cases, other family members – try to use the court system to gain visiting rights.

This issue frequently arises where there has been a divorce, and the parent who gets custody wants to limit the children’s exposure to the other parent’s family. The issue can also come up when one parent passes away, and the surviving parent doesn’t get along with his or her in-laws.

As a general rule, parents have a right under the U.S. Constitution to raise their children as they see fit, which includes deciding how they spend their time and with whom they spend it. So even though grandparents love their grandchildren and want to visit them, this might not be enough to win them visitation.

Some 15 years ago, a grandparent visitation case went all the way to the U.S. Supreme Court. Tommie Granville and Brad Troxel lived in the state of Washington and had two little girls. After Brad committed suicide, Tommie told Brad’s parents that she wanted to limit their visitation to one short visit per month. Brad’s parents filed a lawsuit.

At the time, Washington had a very broad law that allowed anyone to obtain visitation (grandparents, other relatives, even complete strangers) if a judge decided that it was in the children’s “best interests.” A judge ruled for Brad’s parents, saying that spending time with grandparents is generally in a child’s best interests, and there was no good reason not to let Brad’s parents see the two girls more often.

But the U.S. Supreme Court sided with the girls’ mother. The court said that Tommie had a constitutional right to raise her children as she thought best, and judges had no authority to simply substitute their child-rearing preferences for hers. The court didn’t say that grandparents could never get visitation, but it said judges should defer to parents unless the grandparents could show something more than just that visitation would be a nice thing.

What exactly is “something more”? The court didn’t say, and that’s caused a lot of confusion ever since.

Some states are very strict. For instance, the Utah Supreme Court recently ruled that a parent can cut off grandparent visitation except in “exceptional” cases where doing so would cause “substantial harm” to the child. It refused to allow visitation even though the grandparents in that case claimed they had previously had a “parent-like” relationship to the child and provided day care several days a week.

A new law in Florida expands the rights of grandparents to seek visitation, but the law applies only if both parents are dead, missing or in a persistent vegetative state (or if that’s true of one parent and the other parent is a felon).

Some states are more accommodating to grandparents, though. For example, a Pennsylvania appeals court recently ordered a father’s parents to have extended visitation and Skype visits with their grandchild, even though the father was dead and the mother had married another man who was adopting the child.

And the Kentucky Court of Appeals decided recently that the rules are different if the child is in the custody of someone other than the parents. In that case, a mother’s parents sought visitation with their grandchild over the objections of a paternal aunt and uncle with whom the child was living. The court said visitation was okay as long as a judge thought it was in the child’s best interests.

In some states, the rules can vary depending on whether a parent is married, divorced, or widowed, and whether it’s a grandparent seeking visitation or another family member.

Often, the best way to handle these issues is through family mediation, where conflicts can sometimes be resolved and a compromise can be reached to avoid a protracted court battle.