In a normal situation, grandparents would not need to sue for visitation or custody of their grandchildren. Why? Because grandparents and parents would work together to encourage a typical family bond between grandparents and grandchildren. However, our world is not perfect, and all families have some sort of conflict. Further, it is well known that bonds between a parent and a child are often broken (such as in situations where parents divorce or separate), which in turn may make it difficult for a child to have a normal family bond and frequent visitation with grandparents.
So, when can I ask a court to grant me visitation of my grandchild?
A court may only grant a grandparent visitation of their grandchild if:
- the parental rights of at least one parent have not been terminated;
- visitation with the grandchild is in that grandchild’s best interest; and
- the grandparent seeking visitation is the parent of the grandchild’s parent, and the grandchild’s parent:
- has been in jail or prison for at least three months before the lawsuit was filed;
- has been found mentally incompetent by the court;
- has died; or
- does not have court-ordered possession or access to the child
A court will not grant a grandparent visitation of their grandchild if:
- both of the child’s biological parents either:
- had their parental rights terminated;
- died; or
- gave the child up for adoption; and
- the grandchild has been adopted or is in the process of being adopted by someone other than the child’s stepparent.
However, even if a grandparent can prove the factors mentioned above, the grandparent may still need to rebut the new presumption that a parent acts in the best interest of the child. In other words, a parent is permitted to determine that a grandparent should be denied visitation if the parent believes that appropriate.
To rebut the new presumption that a parent acts in the child’s best interest, the grandparent will need to present facts that denial of visitation would significantly impair the child’s physical health or emotional well-being. Please note that the statutory burden is high or very hard to prove. This burden cannot be met simply by presenting evidence that the child would benefit from visitation or would be “sad” due to not seeing their grandparent.
If you are interested in exercising your grandparents’ rights, please contact an attorney as the process is not as easy as one may think.