A Guide to Grandparents' Rights
- Get information about grandparents' rights and when grandparents can sue for visitation. Find out how laws vary by state and how to pursue a grandparent's rights case.
Grandparents and grandchildren often have a special relationship full of love and support. Many grandparents provide emotional and economic support, and they care deeply about the well-being of their grandchildren. Unfortunately, family relationships aren't always perfect. So what happens if grandparents are concerned about their grandchildren or feel they're being kept away unfairly? Grandparents do have some rights with regard to their grandchildren, but these rights can vary significantly depending on the state and the family's circumstances.
What Are Grandparents' Rights?
The term "grandparent rights" usually refers to a grandparent's legal rights to spend time with a grandchild. Although grandparents have limited rights, they can petition for a court order to see their grandchildren. This order can range from making the grandparents the legal guardians of the child to an order allowing the grandparents occasional visits with a grandchild.
Grandparents' legal rights depend on the state where the grandchild resides and the family's circumstances. Cases usually fall under one of three categories:
- Circumstances that allow grandparents to request guardianship. If parents leave a child with the grandparents for many months or if a child is being placed in foster care, grandparents may be able to file a petition to become the child's legal guardians. This is generally true throughout the country, although specific requirements can vary.
- The child's parents divorce or one parent passes away. In most states, if a child's parents divorce or one parent dies, grandparents may be able to ask the courts for visitation rights. Grandparents usually need to show that they have an established relationship with the child and it would be harmful to the child if there was no visitation.
- Grandparents believe that additional visitation would be in the child's best interests. Some states allow grandparents to petition for visits with grandchildren even in cases where there is no divorce or parent death.
Limitations on Grandparent Rights
Even in states where grandparents are allowed to petition for visitation with children, grandparent rights are quite limited when compared to parental rights. The United States Supreme Court ruled in Troxel v. Granville that parents have a fundamental right to make decisions about the "care, custody and control" of their children.
This decision means that grandparents face a significant hurdle when petitioning for visitation with a grandchild against the wishes of one or both of the child's parents. Exact requirements depend on the state where the child lives, but grandparents usually need to prove that visitation is in the child's best interests despite the parent's wishes. Meeting the burden of proof can be difficult because, in most cases, the court must presume that the parents are making the best decisions for their child.
How to File for Grandparents' Rights
Petitions for guardianship or visitation with grandchildren typically need to be filed with the court where the child resides. In many cases, grandparents must intervene in an already existing court case. For example, if parents are divorced, grandparents may need to request visitation through the divorce case. If child protective services has removed a child from the parents' care, the grandparents would need to intervene in that case.
Grandparent rights cases are difficult to win since there is usually a presumption in the parents' favor. State laws on this issue can be especially confusing. Sometimes written state statutes haven't been updated to reflect the decisions of appellate courts. Grandparents seeking court-ordered time with grandchildren should strongly consider talking with a knowledgeable family law attorney.
Grandparents' Rights State by State
The rights of grandparents vary by state, but grandparents do have some rights in all 50 states. Remember that it's usually the laws of the state where the children live that will apply.
Laws and legal procedures are different in every state, and laws about grandparents' rights change frequently. This is why grandparents should strongly consider seeking the advice of a local attorney when pursuing visitation.
While it's best to speak to an attorney or research the laws in your state, there are some things to generally know about grandparents' rights.
Rights When a Parent Is Unavailable
Some states, like Florida and Illinois, allow grandparents to seek visitation in limited cases where the parent who is or was the child of the grandparent is no longer available. This can happen if the parent is:
- In a vegetative state
Grandparents must still prove that visitation would be in a child's best interests, but cases filed under these circumstances may be easier to win.
States That Allow Grandparents to Intervene in a Custody Dispute
Most states allow grandparents to petition for visitation if parents are separating or a child is placed with a third-party but not adopted. Grandparents often have the right to intervene in an ongoing custody case, but it's not always easy to win an order for visitation. Grandparents may need to prove that:
- They have a significant relationship with the child — perhaps because they were the child's primary caregivers for some amount of time
- The child would be harmed by no longer having contact with the grandparent
- The parents' authority and parental rights won't be undermined by the visitation
A handful of states allow grandparents to sue for visitation even if the child's parents are still together, but these cases are very difficult to win.
Grandparent Rights After Adoption
The majority of states automatically terminate the rights of biological grandparents if a child is adopted. There are exceptions in some states if the child is adopted by a stepparent or blood relative or if an order for grandparent visitation was in place prior to the adoption. Some states including California and Connecticut don't automatically terminate the rights of grandparents. However, grandparent rights can still be terminated by the terms of an adoption decree.