Visitation rights generally refer to a basic set of rights that may be granted to a noncustodial parent in child custody and divorce proceedings. Before a noncustodial parent is granted visitation rights, they will normally be agreed to by both parents outside of court and incorporated into a child visitation schedule, which then must be approved by a court.
In determining whether to grant or deny a noncustodial parent visitation rights, the court will apply the child’s best interest standard. In applying this standard, the court will assess certain factors, including:
- The age and overall well-being of a child;
- Depending on a child’s age, the preference of which parent they would prefer to live with;
- The location of each parent’s residence, along with the work history, salary, and employment status of each parent;
- A parent’s daily social and work schedules; and/or
- The mental health or physical well-being of each of a child’s parents.
The laws concerning child visitation rights will often vary by jurisdiction. In most cases, however, if a child’s parents are willing to cooperate with one another, then they may come to an agreement on a child visitation schedule amongst themselves. In which case, they can then just submit it to a court for approval.
Once the court approves the child visitation schedule, it will issue a court order that the parents must abide by or else seek a modification if they need to make any changes to it.
Do Grandparents Have Rights?
When it comes to the right to visit or spend time with a grandchild, a grandparent may have some rights, or at the very least, a means of legal recourse to obtain them. However, the rights that grandparents can obtain over a grandchild are not as extensive as the rights that a parent has over their child.
It is possible that certain states afford greater rights to grandparents based on jurisdiction, different regulations, and whether or not the grandparent is considered a child’s legal guardian. Thus, it is very important that a grandparent review or have an attorney review the applicable laws in the state where they reside before taking legal action.
While the majority of states do provide some limited rights for grandparents seeking to visit with a grandchild, these rights will vary widely by jurisdiction. However, most courts are of the mind that it would be in a grandchild’s best interest to maintain contact and develop a relationship with grandparents who can provide a safe and healthy familial home environment.
In cases where a grandchild’s parents have separated, filed for divorce, or one or both parents have died, grandparents can still seek to obtain visitation rights. Again, grandparents would be wise to retain counsel in such cases since there are roughly around twenty states that have enacted more restrictive visitation rights than those in other states. An attorney can advise a grandparent as to whether they reside in one of these more restrictive states.
Lastly, some state laws acknowledge the concept that a grandparent does not possess a natural right to visit their grandchild since they are not an actual parent. This is why a parent or another legal guardian may need to be present during visits with a grandchild, even after a grandparent has received a court order granting them visitation rights.
How Can Grandparents Guarantee Visitation?
There is no surefire way for a grandparent to guarantee that they can secure visitation rights to see their grandchildren. In most states, a grandparent must first convince a family law judge that being given visitation rights to see their grandchildren would be in their grandchildren’s best interests. Only then may a family law judge be willing to issue an order that allows a grandparent to spend time with a grandchild.
In determining whether to grant a grandparent’s petition for grandchild visitation rights, the court will use the same standard that applies in parental visitation cases. This is known as the child’s best interest standard. When applying the child’s best interest standard, the court will evaluate some of the following factors:
- How far away a grandparent lives from a grandchild’s parents’ residence;
- Whether a grandchild’s parents have refused to permit their child to spend time or visit with their grandparents;
- The grandchild’s desire to visit or spend time with their grandparents;
- How attached a particular grandchild is to their grandparents;
- The current type of relationship that a grandparent has with their grandchildren (e.g., are they close, never met them, etc.); and/or
- The background and lifestyle of a particular grandparent, including whether they abuse drugs or alcohol.
Assuming all other factors are equal, the court will most likely award visitation rights to a grandparent even if a parent has refused to allow a grandparent to spend time with or visit their grandchild. In the majority of cases where a family law court has previously granted a grandparent’s request to see their grandchildren, it has also mandated that the parties create and stick to a fixed visitation schedule.
Once the fixed schedule is created and complete, it must then be submitted to the court and approved by the judge who is assigned to the case. A grandparent’s visitation schedule may include guidelines, such as which days of the week the grandchild will be allowed to visit, whose house (e.g., the grandparent or the parent’s) the visit with a grandchild will take place at, and whether a grandparent will be permitted to spend time with the grandchild on special occasions.
In most cases, a court will prefer that a parent and grandparent work out a visitation schedule on their own time. However, if the parties fail to cooperate on this point, then a court may need to intervene and impose a fixed schedule of their own that takes into account the interests of the parents, the grandparents, the grandchild, or any other parties involved in the matter.
On the other hand, if a parent has a good reason to prevent a grandparent from visiting with their grandchild, then the court will likely deny a grandparent’s petition for visitation rights to see their grandchild. In such cases, the parents of the child will need to submit proof to the court that visiting with their grandparents will put them in danger or cause some type of harm to come to them. The grandparent may then submit their own evidence to refute the parent’s claim.
What Can Be Done If the Court Does Not Grant Visitation Rights?
As mentioned in the above section, grandparents do not possess an inherent right to visit or spend time with their grandchildren. Although it is typically in a grandchild’s best interest to develop and maintain a relationship with their grandparents, this does not necessarily translate into gaining visitation rights over a grandchild. Hence, why it would be in a grandparent’s best interest to hire a local attorney to protect their potential legal rights.
This is especially true in cases where the grandparents have a close and healthy relationship with their grandchildren. If a grandparent is unable to obtain visitation rights through a court, then the next step they should take is to try and contact the parents of their grandchild to see if they would be willing to work out any misunderstandings or disagreements without attorney or court intervention.
In addition, attending formal mediation sessions or seeking the help of a family counselor may also be beneficial to heal any family conflicts. It should be noted that in using either one of these options a neutral third party will need to be present. The one exception being is if the parties enter into their own informal negotiations amongst themselves.
However, it may be worth having a neutral third party present to keep arguments from veering off course and to stay on topic with the issue at hand, namely, obtaining visitation rights to see one’s grandchildren. In most family law cases, the parties should try to avoid having to go to court since this can add more stress to family issues and put strain on familial relationships.
Therefore, if a grandparent does have to attend court to obtain visitation rights over their grandchildren, then their best case scenario would be to get a lawyer involved to help move the process along and resolve it as efficiently as is possible.
Do I Need an Attorney If I am a Grandparent Seeking Child Visitation?
If you are a grandparent who is concerned about your visitation rights or would like to obtain visitation rights to see your grandchildren, then it may be in your best interest to consult a local child visitation attorney for further legal assistance.
An experienced child visitation attorney can inform you about your rights as a grandparent and can explain how the relevant laws in your state may affect your ability to schedule visits with your grandchildren. Your attorney can also help you to complete and file the necessary legal forms to obtain grandchild visitation rights in court.
In addition, your attorney will be able to provide legal representation before a family law judge and/or in mediation conferences with your grandchildren’s current parents or legal guardians.
Finally, if you have any questions or concerns over your rights to see your grandchildren, your attorney will be able to answer and address those concerns at your initial consultation meeting.
