When Can Grandparents Petition for Visitation?

Certain circumstances must exist before a grandparent can ask a court for visitation privileges. Specifically, many states require a grandparent to intervene in a custody proceeding as part of a divorce or separation. Only a few states allow grandparents to file a petition (written request) for visitation that is not a part of a divorce or custody case.

While the rules governing grandparent visitation vary from state to state, generally, a parent must be preventing visits before a grandparent can seek court intervention. For example, grandparents can’t file a visitation action simply because they want more time with their grandchildren. Also, in cases where parental rights have been terminated—either involuntarily or through adoption—a grandparent is unlikely to get visitation.

Do a Parent’s Feelings on Grandparent Visitation Matter?

Although each state has its own grandparent visitation laws, the U.S. Supreme Court case, Troxel v. Granville, set some parameters for visitation that are followed in every state. A court must consider a parent’s wishes and reasons for preventing grandparent visitation when deciding whether visits are appropriate. Parents’ feelings toward grandparents matter, and a court may deny grandparent visitation if it creates an undue amount of strife. Also, a judge must ensure that grandparent visitation—even if it would be positive for a child—doesn’t infringe on either parent’s rights to time with the child. For example, if the grandparent visits put an unnecessary strain on the parents or parent-child relationship, a judge won’t award visitation. However, a parent’s wishes, while persuasive, aren’t controlling. A judge will award a grandparent substantial time with a grandchild if it’s in the child’s best interests.

When Can I Seek Custody of a Grandchild?

In limited circumstances, a grandparent may be able to obtain custody of a grandchild. These situations are typically limited to those where a parent is unfit. However, one parent’s abuse or neglect of a child isn’t usually enough for a grandparent to get custody. The other parent’s rights will come into play before a grandparent’s. For example, if one of the child’s parents dies and the other parent has neglected, abused, or abandoned the child, a grandparent may be able to intervene and obtain custody. A grandparent may even be able to obtain custody when both parents are living if they are both unfit. A court will always put a child’s best interests first. As a grandparent seeking custody, you’ll bear the burden of proving that a parent is unfit.

Do Grandparents Have a Right to a Court Hearing on Visitation or Custody?

Visitation and custody decisions aren’t made lightly. Rarely will a judge issue a visitation order without holding a formal hearing where each side presents evidence, usually including witnesses. Ultimately, a court will need to decide that grandparent visitation or a change in custody would help the child and provide stability and security in the child’s life. A judge can’t make that determination without at least evaluating the child’s current living circumstances, the parent-child relationship, the grandparent-grandchild bond, and the grandparents’ relationship with the child’s parents. A grandparent carries the burden of proving that either grandparent visitation or a change of custody would benefit the child despite the parents’ objections.

Questions for Your Attorney

• My son’s ex-wife has taken my grandkids to another state and prevents any contact. What can I do?
• My daughter and her husband, who live 15 minutes away, let me see my grandkids once a year, but I would like to spend a lot more time with them. Since they haven’t cut off visits completely, can I ask a court to intervene?
• The state opened a child protective services case involving my grandkids. I would like to obtain custody of them. What should I do?