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Grandparent visitation can be complicated issue

If you’re a grandparent who dotes on your grandchildren, it would no doubt be devastating if you were denied access to them. Nonetheless, this gut-wrenching scenario plays out all the time.

For example, let’s say your adult child passes away, leaving kids behind, and his or her surviving spouse decides it’s time to move on and stops responding to your attempts to see the kids.

Similarly, maybe your child got divorced, his or her ex has the kids, and that person won’t let you see them. Perhaps your adult son or daughter decides to use your grandchildren as pawns, either withholding access to them unless you give them money or as retaliation after a falling out. In such scenarios, do you have a legal right to see your grandchildren?

The answer is that you might, but it could be an uphill battle securing it. That’s because of a U.S. Supreme Court case called Troxel v. Granville, which gives parents a very strong right to control the upbringing of their children. Before this case, decided nearly 20 years ago, family courts could grant visitation rights to grandparents, even over a perfectly fit parent’s objection, if the court found it was in the “best interest of the child.”

However, in Troxel, the Supreme Court said that judges must presume a fit parent is acting in the kids’ best interests when making childrearing decisions, even if that means denying their kids a relationship with their grandparents. You can still seek visitation rights as a grandparent, but it can be tough to overcome that presumption in favor of the parents.

Still, many states have passed laws meant to provide guidance for grandparents in this situation, laying out specific factors that courts will consider. These factors usually include a parent’s reasons for opposing the visitation, the child’s emotional and physical needs, the nature and quality of the relationship between the grandparent and grandchild, and the child’s wishes if he or she is mature enough to express them.

Additionally, many states don’t allow a grandparent to seek visitation over a parent’s objection unless one or both parents have died, the parents are divorced or divorcing, or a custody proceeding is going on. Many states will require that the grandparent has repeatedly attempted to visit the grandchild and been denied contact.

These laws don’t always help the grandparents. In a recent case from Rhode Island, the children’s mother was killed by police in Florida while fleeing a robbery scene with her boyfriend. The father, who was separated from her at the time and had custody of the kids, continued to rely on their maternal grandmother to help with childcare.

However, he didn’t need her around as much after he remarried. Plus, when the kids returned from visits with her, they exhibited behavior problems, had trouble sleeping, were acting up in school, and even exhibiting stress-related physical problems. They also complained that they didn’t want to visit her anymore.

Though there were no allegations of abuse, the father stopped responding to the grandmother’s visitation requests. She went to court seeking a visitation order, but the family court judge denied her request and the Rhode Island Supreme Court upheld the decision on the grounds that there was no evidence the father was unfit and that the grandmother couldn’t show by clear and convincing evidence that his decision was unreasonable.

At the same time, if a court does order grandparent visitation, parents who defy the court will pay a price. For example, an Indiana court awarded visitation to a couple who had raised their four grandchildren for several years before they moved back in with their mother. She didn’t allow the visits to happen, and a family court judge ordered the mother to serve 180 days in jail for contempt and to pay a $14,000 sanction. The order was upheld on appeal.

When grandparents secure visitation rights, parents can often still set the ground rules, as a recent case in South Carolina shows. There, a newborn child’s father died in a car crash. The paternal grandmother demanded unsupervised visitation, but she had a strained relationship with the boy’s mother, who felt uncomfortable with unsupervised visits. The mother offered to allow monthly supervised visits.

The grandmother took the mother to family court, where a judge granted unsupervised visitation. However, the state appeals court reversed the ruling, rejecting the grandmother’s argument that supervised visits were unreasonable and stating that when a fit parent agrees to any visitation, further court intervention would violate the parent’s rights.

The law can differ from state to state, so talk to a family lawyer where you live.

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