Divorce affects more than the two people going their separate ways, especially when there are children involved. The children are often denied time with extended family members, especially when the divorce is “ugly.” Grandparents are often the ones that are most affected, but this does not have to be the case because grandparents have rights, too. They have the same rights a parent has, depending on the state the parents and children live in, as well as what is decided in the divorce. If grandparents want visitation and/or custody rights, they must take part in the divorce proceedings to ensure that their rights are honored.
What Does the Child Need?
The most important factor considered in any child custody or visitation case is the needs of the child. Some states have stricter regulations than others, but in general, the following considerations are made:
- What are the emotional needs of the child in terms of his or her grandparents? Did they have a close relationship prior to the divorce? Would it harm the child to not see the grandparents?
- Are the grandparents physically capable of handling the child(ren)?
- What does the child want? This is something that people often forget while in the throes of divorce.
- What is the physical distance between where the grandparents and child(ren) live?
These are just a few of the considerations when determining the rights of grandparents in divorce. The judge will look at these factors as well as the relationship between the child(ren) and the parents when determining the level of relationship that needs to be fostered with the grandparents.
Filing in Court
Grandparents have the right to file for visitation and/or custody even after divorce proceedings have taken place. Court ordered visitation is something that grandparents can petition to receive when one party of the divorce refuses the grandparents the right to see their grandchildren. Parents are not the only people that can file for custody and/or visitation rights in certain states. Grandparents have the right to ask for a visitation schedule that includes a rotation with the grandparents as the judge sees fit. Generally, if the grandparent played any type of role in the child’s life or have an impact on the child’s welfare, then the grandparents are provided some degree of rights to time with the child.
A Bond Must Be Proven
The general idea behind visitation and/or custody of grandchildren resides on the preexisting relationship between grandparents and their grandchildren. If there was no effective relationship prior to the divorce, obtaining visitation rights can be a little more difficult. The judge typically keeps the best interests of the child in mind, so being able to prove a solid relationship prior to the divorce is crucial. This is done by the grandparents’ own testimonies as well as those of the grandchildren, if they are old enough to speak their minds and let their wishes be known.
In some states, no matter how messy a divorce is or how great the bond between a grandparent and grandchild, visitation rights might not be provided. Being of the same flesh and blood is not enough of a legal argument. Typically, the only time grandparent rights are a given is when the parent of the child is deceased, at which point most courts provide visitation rights to the appropriate set of grandparents. If both parents are alive, however, grandparents should not assume they have legal rights in regard to the child. That is not to say that grandparents cannot sure for rights, but they may not be granted without a messy court battle and a protracted period of time.
Distance Is an Issue
Grandparents living in a separate state from their grandchildren have two different state statutes to abide by; however, the Parental Kidnapping Prevention Act of 1980 requires every state to enforce the rights provided by another state. If a grandchild lives in one state and the grandparents live in another, the decision made by the court in the child’s state must be adhered to in the grandparents’ state too.
Grandparents’ rights can be a very gray area that usually needs to be handled by a lawyer and the judicial system. Many factors play a role. Most grandparents find that it is best to work with the system as much as possible. If there is a bond that can be proven and the grandchildren express a desire to be able to spend time with their grandparents, chances are the judge will rule favorably toward the grandparents, but this should never be taken as a given.
Grandparents.com. Your Guide to Grandparents’ Rights. Retrieved from http://www.grandparents.com/family-and-relationships/grandparents-rights/grandparent-rights-guide. Accessed on August 1, 2016.
Ohio State Bar Association. What Rights do Grandparents Have After Divorce? Retrieved from https://www.ohiobar.org/ForPublic/Resources/LawYouCanUse/Pages/LawYouCanUse-88.aspx. Accessed on August 1, 2016.
California Courts. Visitation Rights of Grandparents. Retrieved from http://www.courts.ca.gov/17976.htm. Accessed on August 1, 2016.