Grandparents' Visitation Rights Text Size:

At common law, courts did not allow anyone but parents of children to have visitation rights to the children. The laws have changed. Currently, most state laws allow visitation rights to grandparents and stepparents if it is in the child's best interest to maintain an established relationship. Most visitation rights are granted when the parents are divorced or when one of the parents has died. However, there are other circumstances in which such visitation rights are allowed. For example,

• In New Jersey, a grandparent seeking visitation with a grandchild living in an intact family must demonstrate that the child would be harmed by the lack of visitation and that the harm suffered was sufficiently significant that the State's intervention would be justified if it were occurring in the parent-child relationship.
• In New York, grandparents can petition for visitation over the objections of the child's parents if parental rights are safeguarded.

Nonparent Visitation

Every jurisdiction now allows third-party or nonparent visitation under some circumstances. However, state statutes do not create an absolute right of visitation. Rather, they establish a procedure for specific classes of third parties to apply to the court for visitation.

Grandparent Visitation

The circumstances under which grandparents have standing to request visitation vary from state to state. The general rule is that visitation will not be granted in an ongoing, intact marriage. For example, in Michigan a grandparent has standing to seek court-ordered visitation if a child custody dispute is pending, or if a divorce, annulment or separation action is pending, but not in a paternity proceedings. Two common circumstances that permit grandparents to request visitation are the death of a parent and the parents' divorce.

In some jurisdictions, grandparents will not be granted visitation unless one of the statutory factors is present. However, even where the statute does not strictly apply, some courts, using their parens patriae power to protect the child's interest, will order visitation.

In jurisdictions that limit the types of situations in which grandparents may seek visitation, the death or divorce of the grandparents' child typically gives grandparents standing to seek court-ordered visitation. The courts can allow visitation when it is in the child's best interests.

In adoption cases, some states allow visitation following adoption, others hold that grandparents' rights are terminated by the adoption. When the adoptive parent is a stranger, the public policy which favors giving the child a fresh start may dictate that grandparents' visitation rights be denied. On the other hand, when the child is adopted by a stepparent or relative, these public policy concerns may be diminished and visitation may be ordered.

The termination of parental rights of a divorced parent due to abuse, neglect, or abandonment may result in the termination of the grandparents' rights.

Guidelines for Granting Nonparent Visitation

Many statutes contain no guidelines for granting visitation to grandparents or other nonparents. In the absence of any guidelines, judges grant visitation when it is in the best interests of the child. The importance of preserving an existing relationship between the child and his or her grandparents must be weighed against the custodial parent's need to exercise a veto power. There are several factors to consider:

1. Is there an existing, positive relationship?
2. Has the nonparent demonstrated concern for the child?
3. Is the nonparent able to handle visitation?
4. What is the child's preference?
5. How will visitation affect the family?

Visits with grandparents should be scheduled for those times that they had traditionally interacted with the child. The court can also order that the visitation be supervised.

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