Grandparents’ and Great Grandparents’ Visitation Rights
Introduction
Grandparents or great grandparents may be granted visitation rights with children. However, it can be difficult to persuade a court to grant visitation rights against the parents’ decisions. Grandparents or great grandparents must show that granting them visitation rights is in the best interest of the child or that the parent is unfit to make the visitation determination. This can be difficult, but not impossible, to accomplish. Courts may, however, grant grandparent visitation rights when there has been significant interaction between the grandparents and grandchild and a strong relationship has been built.
Moreover, grandparents or great grandparents can only seek visitation on their own and not through their child who is the parent of the grandchild. Their child cannot ask the court to grant the grandparents’ (or great grandparents’ as the case may be) visitation rights.
When can grandparents or great grandparents file a motion to obtain visitation rights?
Grandparents can seek visitation rights only under certain circumstances:
- The grandchild’s parents must have divorced, had their marriage declared invalid, or legally separated
- Dependency and neglect actions where someone other than either of the grandchild’s parents is making decisions for the grandchild or has custody of the grandchild or where the grandchild has been placed outside of the home
- The grandparent’s deceased child is the deceased parent of the grandchild
Grandparents or great grandparents cannot seek visitation rights where the grandchild’s or great-grandchild’s parents never married and there has been no allocation of parental responsibilities or other custody case filed concerning the child. Moreover, grandparent and great grandparents cannot seek visitation when a child has been placed for adoption or has already been adopted. And, an involuntary termination of parental rights prevents grandparents or great grandparents from pursuing visitation.
How do grandparents or great grandparents obtain rights?
The grandparents initiate the action either by filing a pleading with the court if no action already exists regarding the child or intervening in an existing action, such as a dependency and neglect proceeding. Typically, the grandparents or great grandparents will file an affidavit that sets forth facts supporting the requested order in the district court for the district in which the child resides.
Whether a hearing will be held concerning the grandparents request for visitation will depend on whether a party requests a hearing. The court may rule on the grandparents’ motion without a hearing if there are no objections.
No grandparent or great-grandparent may seek visitation more than once every two years unless the court finds good cause for an exception to the limitation. Additionally, the court may modify or terminate an order allowing grandparent or great-grandparent visitation if the modification is in the best interests of the child.
How does the court decide whether to grant visitation rights?
Courts make the determination of whether to grant grandparent visitation rights based on the best interest of the child. If a hearing is required, the court will hear arguments of all sides regarding visitation rights to determine what is in the best interests of the child. It doesn’t matter what the allocation of parenting time is between the parents, the court may grant either maternal or paternal grandparents or great grandparents visitation rights.
The specific schedule for grandparent or great-grandparent visitation will depend on the facts and circumstances of each case.
Notwithstanding, there is a rebuttable presumption in favor of the parental visitation determination. To rebut this presumption, grandparents or great-grandparents must establish that the parental determination of visitation rights is not in the child’s best interests or that the parent is unfit to make the visitation determination, which is not easy to prove.
Grandparent and great grandparents can only seek visitation rights once every two years unless there is good cause.