Visitation Rights for Grandparents

Child custody is a term used to describe the legal relationship between a child and his or her parents or legal guardians. Anyone that has custody of a child has all the rights and responsibilities of raising that child; including making decisions and caring for the child. Anyone can have custody of a child if granted by a court. A legal guardian of a child can be that child's biological parents, adoptive parents, grandparents, cousins, siblings of legal age, aunts, uncles and friends. In most child custody cases grandparents are not considered when it comes time to secure custody and visitation rights of children that have been separated from their parents because of death, divorce, or the breakdown of a relationship between parent and child. The arguments for grandparents' rights are:

  • Grandparents may provide a stabilizing role in their grandchildren's lives, particularly after a divorce or crisis (such as the death of a parent).
  • Where grandparents have been involved in a child's life, it can be traumatic to the child to suddenly be denied access.
  • The mere fact that parents are divorced, or the grandparents' child dies or is incarcerated, should not automatically serve to grant the custodial parent the right to sever a positive relationship between the grandparents and their grandchildren.

The arguments against grandparents' rights are:

  • The state has no business interfering with the child-rearing decisions of competent parents, even if the parent determines that grandparent visitation will not be permitted even with a child visitation monitor.
  • Some grandparents are excluded from their grandchildren's lives for good cause - for example, because they were abusive to their own children and cannot be trusted with the grandchildren. Some grandparents interfere with ordinary parental decision-making, or badmouth one or both parents to the grandchildren, creating unnecessary conflict.
  • Where conflict exists between parents and grandparents, even if the parents are being unreasonable, court interference can destabilize the home environment of the grandchildren.

Because currently there is no grandparent visitation law, the rights of grandparents in a child custody case involving legal guardianship or visitation are not protected in the United States Constitution nor are they protected in common law. Any laws or statutes that protect the rights of a child's grandparents during a child custody case have been created recently, within the past 40 years, and are not identical across all 50 states of the Union. All 50 states in the country have visitation laws in effect for children when it comes to who is allowed to visit them following a child custody case. These laws include foster parents, stepparents, and grandparents.

There are roughly 20 states out of the 50 in the country that have restrictive visitation statutes in effect that allow only the grandparents of the child or children involved to have visitation rights of the children and not anyone else. This means that foster parents, cousins, other relatives and even stepparents cannot be given visitation rights. Grandparents in all 50 states of the country can file a lawsuit in court if they have been denied the right to see or visit with their grandchild for no apparent reason.

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