It is the constitutional right of parents to raise their children. As stated by the Supreme Court in Troxel v. Granville 530 U.S. 57 (2000), “the custody, care, and nurture of the child reside first in the parents.” This is known as “parental presumption,” meaning parents come first in the matter of their children’s upbringing. This ruling bars others from stepping in to remove a child from the custody of parents. It also can have a bearing on visitation rights. Being able to prove that you as a grandparent should have custody or visitation rights requires strong evidence and how it may be done will depend on the circumstances of the case.
Often, grandparents lose out when a divorce or separation on the part of parents occur, leaving them without the right to continue seeing their grandchildren. An example of this is If the parents were never married and custody of the child is given to the parent unrelated to the grandparents. That parent may bar the grandparents from having any visitation rights to the child out of spite or other emotional reasons. Can this be overcome? Do grandparents have any rights at all in the matter?
Grandparent Visitation Rights
In some cases, parents fall into difficult circumstances where they require the help of grandparents. This could occur in cases of illness, injury, or incarceration. If these parents and the grandparents agree on the matter, they can petition the courts to have custody or visitation transferred to the grandparents. In order to ensure that this is official and is followed by schools, doctors, or other professionals, it is best to get such an agreement turned into a court order so that it can be enforced.
In other cases where grandparents seek visitation rights, how it is handled will depend on if both the natural parents oppose it or if only one opposes it. If both oppose it, the grandparents have the burden of proving that, by denying visitation rights, it will result in harm to the child. This is a very difficult task. If that can be proved, then the grandparents must demonstrate to the court that it is in the best interests of the child to allow grandparents visitation.
If grandparent visitation is opposed by only one parent, then it is the burden of the grandparents to prove to the court that visitation is in the child’s best interests.
Grandparent Custody Rights
In the matter of custody rights, grandparents may be able to gain custody through the demonstration of various factors.
These factors include:
- Proving a parent is unfit
- Showing a previous order of “divestiture,” which refers to giving up of a right to the child
- Showing that a voluntary relinquishment of the child occurred
- Showing that the child was abandoned by a parent
- Special circumstances and facts that would provide an exceptional reason for the change in custody
The above can also be difficult to prove. However, if any of the above can be proven to the court, the grandparents must then provide evidence that giving them custody of the child is in the child’s best interests.
Turn to Malinowski Hubbard, PLLC for Family Law Representation
As you can see, the issue of grandparents’ rights is a complex matter. If you would like to discuss your chances of gaining visitation or custody rights of a grandchild, you can turn to our firm for legal advice. We have devoted our practice exclusively to family law which means that our time, attention, efforts, and resources go into this field alone without exception. Work with a firm backed by substantial achievements, such as Super Lawyers listing and the highest rating of AV Preeminent® by Martindale Hubbell® for ethical standards and legal ability.
Contact us at (703) 935-4222 to schedule your confidential consultation about your family law case today.