Courts traditionally do not interfere with relationships between parents and children — or between grandparents and grandchildren — when the family of origin is intact and where the children’s safety or welfare is not in danger. However, when adult children divorce or where litigation takes place between parents who have never married, grandparents may have the right, under state law, to obtain court orders protecting their rights to visit with their grandchildren. Most states have a statute that addresses this very issue. This article addresses grandparent’s visitation rights by describing the general terms of grandparent visitation right statutes.

State grandparent visitation statutes allows courts to issue protection orders in child custody cases that already have been filed with the courts. These cases involve:

1. Decrees of invalidity (annulment) of the parents’ marriage, or decrees of dissolution of marriage or legal separation, and cases where courts have entered order allocating parental responsibility between parents who have never married;
2. Cases where parental responsibilities for children have been given to someone other than the child’s parents or the child has been placed outside of the home of a parent (except when a child has been placed for adoption or the adoption is final); and
3. Cases where a parent, who is the child of the grandparent, has died.

Where issues concerning a child’s welfare have never been brought before a court — where families are intact and no court has been involved in the parent-child relationship — state laws generally do not permit grandparents to sue those parents for visitation. This is because in an intact family — where courts are not involved in children’s issues — the decisions of parents for and about their children are private matters; the rights of parents to raise their children in intact families and to make decisions in what they believe to be their children’s best interests are constitutionally protected.

In cases where a court has become involved in a child’s life, however, grandparents may intervene — or may file independent legal actions — seeking court orders requiring parents to permit visitation and contact with their grandchildren.

In order to obtain such an order in cases where this is legally possible, the grandparent must generally file a motion for grandparent visitation. This written request must be supported with a sworn affidavit reciting the facts supporting the grandparent’s claim and must specifically state why this visitation is in the best interests of the grandchild. Each birth parent or other custodian of the child must usually receive a copy of both documents.

Any parent or custodian can file a response and opposing affidavits. If no one asks for a hearing, then the court reviews the affidavits and the motions and can order visitation only if it determines that such is in the best interests of the child. If either side asks for a hearing, the court must hold one. The court then decides what visitation, if any, is in the best interests of the child and enters the appropriate order.

The court, in these cases, is required to make its decisions in the best interests of the child. The courts are typically required to give the parent’s decisions concerning grandparent visitation special weight and significance. The court cannot simply substitute its own opinion for the decisions of the parent; the parent’s determination is given preference and is presumed have been made in the child’s best interests. The grandparent’s proof must overcome this presumption; the grandparent must establish by clear and convincing evidence that the visitation he or she seeks is in the best interests of the child. A grandparent can prove this by establishing, for example, that the parent denying visitation is unfit to make that decision. He or she might prove that the parent’s decision is affirmatively wrong and that it is, in fact, psychologically harmful to the child.

The grandparent can prove that visitation with the child — contrary to the parent’s belief — is affirmatively in the child’s best interests, but this has to be shown by clear and convincing evidence.

There is an important limitation on the court’s power, even if it decides to order grandparent visitation; it cannot order a parent not to move outside of the state in order to preserve a previously adopted visitation schedule. The previous order concerning grandparent visitation would have to be modified, in the child’s best interests, to accommodate the move.

Sometimes, after a divorce, one parent might remarry and the new stepparent may actually adopt the grandchild. This type of an adoption does not take away the biological grandparents’ right to visitation with their grandchildren. However, if parental rights are terminated in a dependency and neglect proceeding and if the grandchildren are adopted by an entirely new family, the grandparents’ rights to visitation with the adopted child will be severed.

If the grandparent visitation order is violated by the custodian of the child, the grandparent can ask the court to enforce the order. The grandparent seeking enforcement of the order must file a verified motion describing when and how the custodian violated the order. The court has to determine if the violation really occurred and it must also decide whether there is likely to be a substantial and continuing noncompliance with the order.

The court can then (1) deny the motion, if the allegations in the motion are not adequate; (2) schedule a hearing and give notice of the date and time of the hearing to both sides; or (3) order the parties to mediation — and if it fails, the court can schedule a hearing. If the court decides the custodian or the parent violated the order, it can impose additional terms and conditions, modify the order to meet the child’s best interests, require the custodian or the parent to post a bond or security to ensure future compliance with the court’s order, or require makeup visitation.

In addition, the court could hold the violator in contempt of court and impose a fine or jail sentence. The court also has the power to make the violator of the order repay the grandparent for his or her costs and attorney fees. A motion for grandparent visitation can only be made once every two years, unless the court finds good cause.

Grandparent visitation statutes and procedures vary from state to state. Grandparents with child visitation questions should seek the help of child custody attorneys in the state in which the children reside.