What Are the Grandparents’ Rights When Their Children Divorce?

Many grandparents worry how their son’s or daughter’s divorce will alter their ability to see their grandchildren.

Grandparents have pursued visitation and custody through legal channels, which has prompted states to adopt their own rights for grandparents. Those laws vary slightly across the nation, but they share one common factor: the children’s best interests.

Do you have visitation rights?

To determine your rights as a grandparent to see your grandchildren post-divorce, consider the state in which you live.

For example, in Arkansas, factors considered in determining grandparents’ visitation rights include considering whether the children have lived with the grandparent.

In California, the court seeks to determine if there was a pre-existing relationship with the children. It also balances the child’s best interests in having visitation with a grandparent against the right of the parent to exercise parental authority. The court listens to the parents and likely will not grant visitation rights if both parents agree that the court should not grant it.

Florida law allows a grandparent to petition the state for visitation of a minor child when its parents are deceased, missing, or in a persistent vegetative state; or when one parent is deceased, missing, or in a persistent vegetative state and the other parent has been convicted of a felony or a violent offense and the child’s health or welfare is threatened.

Visitation granted by the court isn’t always permanent. Changes in situations can alter the legal decision.

Parents have the ultimate say

Fit parents have the exclusive legal right to determine who visits their children.

This goes back to the 2000 case of Troxel v. Granville. The Supreme Court of Washington overruled a Washington state ruling, which was in favor of two grandparents’ request for additional visitation rights with the two daughters of their recently deceased son. The ruling was against the wishes of the mother, and in the end was found to “unconstitutionally infringe on parents’ fundamental right to rear their children.”

The case went to the U.S. Supreme Court, which affirmed the state Supreme Court decision and stated that it is presumed that fit parents act in their children’s best interests, and states shouldn’t enter the “private realm of the family” to question the decisions of a fit parent.

What if my grandchild moves to another state?

Thanks to the Visitation Rights Enforcement Act, grandparents can visit their grandchildren anywhere in the United States as long as they have been granted visitation rights in one state.

What happens if my adult child dies?

The death of a child changes existing visitation rights. Many courts favor awarding visitation rights to grandparents under such circumstances, as it could help the child remember the parent they lost in a manner that is beneficial to their healthy development.

If a deceased child was the custodial parent and the grandchild is a minor, the surviving parent is immediately entitled to sole custody unless it is determined to not be in the child’s best interest. A grandparent can contest visitation through an independent proceeding. Grandparents whose deceased child passed away while married are eligible to apply for visitation rights.

What if my grandchild is adopted?

Adoption does not automatically terminate court-granted visitation rights, but this varies from state to state.

Can I be awarded custody of my grandchild?

Possibly. There are two methods of gaining custody or rights to care for a minor as a nonparent: guardianship and adoption.

Guardianship

• Parent(s) retain some rights and may be awarded reasonable contact
• Guardianship can be ended if parents become capable of rearing the child
• Guardians can be court-supervised

Grandparents awarded “guardianship of the person” are responsible for the child’s care, including providing food, clothing, shelter, emotional support, medical and dental care, education, and other special needs.

Adoption

• Parents’ rights are terminated
• Legal relationship with adoptive parents is the same as a birth family
• Adoptive parents are not court-supervised

Visitation with grandchildren is an issue often most effectively solved outside a courtroom. It begins with maintaining healthy relationships with the parents of your grandchildren. If an informal visitation agreement can’t be reached, grandparents can consider mediation with an experienced attorney before resorting to courtroom action.

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John Griffith is a partner at Griffith, Young & Lass Family Law, offering assistance and representation that guides their clients through the legal process and helps protect them and their families.