An Introduction to Grandparents' Visitation Rights

What grandparents should know about regaining contact with grandchildren

Not being able to see grandchildren can cause depression
Photo © Jamie Grill | Getty

Most grandparents find the idea of being unable to see their grandchildren inconceivable. In actuality, however, thousands of grandparents have faced the loss of their visitation rights. Some have successfully negotiated, either in or out of court, for the right to see their grandchildren, but others have had to learn to live with the loss of contact.

The idea of grandparents' rights is a relatively new concept. A look at the history of grandparents' rights shows that the first laws weren't passed until the 1960s. Thirty years later, every state provided a way for grandparents to petition for contact with their grandchildren, although there were wide-ranging differences in the state statutes. 

Laws About Grandparents' Rights

Although a uniform law for each of the United States would make things much simpler, that has not happened and is unlikely to happen in the near future. Family matters are among those items that are left up to the states to decide. Every state has a statute providing for grandparent visitation, but that does not mean that winning a case is simple or easy.

State statutes can be classified as permissive or restrictive, but that's a bit of an oversimplification. It might be better to think of them as falling somewhere on a continuum. And in addition to considering state law, judges also consider case law, which means the rulings of judges in similar cases.

The Supreme Court case that relates to grandparents' rights in Troxel v. Granville. This case involved a Washington State statute about the right of third parties to seek visitation with children. The Supreme Court decided that the statute was overly broad, as it required only that such visits be in the best interests of the children. Generally, the court decided that the statute violated a parent’s right to make decisions concerning the care, custody, and control of children. Although the statute did not mention grandparents specifically, grandparents are the third parties who file most often for contact with children.​

Following this Supreme Court decision, many states had the constitutionality of their laws challenged in court. To see how some of these cases came out, see these post-Troxel cases.

Other Remedies

Laws governing grandparents' rights are constantly being revisited, and the Supreme Court could elect to hear another case on the topic. In 2012, however, the court declined to address the Alabama case of E.R.G. v. E.H.G., although five other states joined in the suit. The suit referred to a "gaping split among states" as each state tries to figure out what is required by the Troxel decision. 

Advocates for grandparents' rights still hope for more clarity from the highest court in the land. In the meantime, grandparents whose access to their grandchildren has been restricted should consider all the possible paths before deciding on a lawsuit. Besides family members attempting to reach an agreement on their own, mediation is another venue that can often avoid the divisiveness of a lawsuit.

Chances of Success With a Lawsuit

If no other remedy is found, grandparents need to be aware of their chances for success before commencing a lawsuit. Success is more likely if the grandparents have documented their relationship with their grandchild. Such documentation is a good step for grandparents to consider to safeguard their rights. There are, however, other factors that the court will consider.

First, have the grandparents been denied all visitation, or has their access to grandchildren merely been restricted? If all visitation has been denied, the grandparents have a better case. Indeed, in states with stringent statutes, grandparents cannot file a suit if they are allowed to see their grandchildren, even if the visitation is very infrequent.

Second, what is the family situation of the children in the dispute? If the family is intact—not affected by death or divorce—grandparents have a weaker claim, or possibly no claim at all. Grandparents of children born out of wedlock also may have a more difficult time, as paternity must be established before the suit can proceed. Adoption can also terminate grandparents' rights just as it terminates parental rights unless the adoptive parties are stepparents or other grandparents, in which case grandparents’ rights may survive the adoption.

Third, have the grandparents served as custodial parents or served in the role of parents? If grandparents have provided child care, taking children for doctor’s visits or otherwise filled roles normally filled by parents, the rights of the grandparents are generally strengthened.

The Best Interest Test and the Harm Standard

All suits for grandparents' rights involve the question of whether visits with grandparents are in the best interests of the children. Grandparents must generally prove that their visits will not be harmful to the children involved. This isn’t as simple a task as it at first seems, as some judges believe that overruling parental decisions can have a destabilizing effect on the family unit.

Some states set the bar even higher with the harm standard. In these states, grandparents must prove that a denial of visitation will actually harm the child. The grandparents who have the best chance of winning in these states are those who have had an exceptionally close, supportive relationship with grandchildren. The harm standard can be seen as penalizing grandparents in other circumstances, even though those other circumstances may have been out of the grandparents' control. For example, grandparents who lost contact with grandchildren when the children were very young will have difficulty with the harm standard, as the children may not even remember their grandparents. 

Special Concerns for Custodial Grandparents

Grandparents' rights are of the greatest concern when grandparents have served as parents, even in a temporary capacity, as the loss of the relationship usually causes greater distress on both sides. Grandparents who are raising their grandchildren should consider seeking some type of legal custody. Otherwise, they face the possibility of having the children restored to their parent or parents, who could then decide to sever the grandparents’ relationship with their grandchildren.

Even grandparents who have legal custody of their grandchildren are vulnerable to lawsuits by parents who want to reclaim their children, but a legal arrangement makes it more likely that grandparents will retain some type of access to their grandchildren.

Grandparents are most often put in the parental role by parents who are incarcerated, have substance abuse problems or are otherwise unstable. Grandparents should be aware that parents in such families are more likely than more stable families to change their minds about child care and custody. 

Arguments For and Against Grandparents Rights

Those in favor of strengthening grandparents' rights usually cite the stabilizing effect of grandparents in grandchildren’s lives and the trauma which truncating that relationship can cause. They also cite the variety of family configurations that are possible in modern society and the fallacy of assuming that the nuclear family is always the best setting for raising children. This was one of the points raised by Supreme Court Justice John Paul Stevens in his dissent in the Troxel case. Arguing against a one-size-fits-all ruling, Stevens referred to the "almost infinite variety of family relationships that pervade our ever-changing society."

Those who oppose strengthening grandparents' rights argue that the right of parents to make decisions about their own children should not be compromised. As stated in the majority opinion in the Troxel case, if parents are fit, "there will normally be no reason for the State to inject itself into the private realm of the family." Opponents of grandparents' rights also argue that, just as some parents are not good parents, some grandparents are not good grandparents, especially if they stir up family conflict in the absence of any evidence that the parents are not fit.

Avoiding the Courtroom

In conclusion, although it is difficult for many grandparents to see their roles as anything other than legitimate and even sanctified, parents' rights do trump grandparents' rights unless the parents can be proven unfit. Therefore, many suits for grandparents' rights present knotty legal problems and are best avoided. If personal negotiation or legal mediation can resolve the conflict, such issues are best kept out of courts of law. Those who would like to avoid court should consider these six steps for estranged grandparents.