The parent with primary physical custody must allow free and open access to the child by the non-custodial parent upon proper notice, unless there is a good and valid basis to restrict such access. Likewise, the grandparents of a divorced or deceased son or daughter most often want to continue their relationship with their grandchildren. Occasionally, particularly after a contested divorce, where the grandparents may have taken one side or the other, the custodial parent refuses to allow them visitation. The courts and state legislatures have expanded visitation rights to include the rights of grandparents to visit and have continuing contact with their grandchildren. In proper circumstances, grandparents may even be awarded custody.
In some states, legislatures have enacted statutes giving visitation rights to the grandparents of minor children whose parents are deceased, divorced or separated. The underlying presumption is that allowing and establishing continuing contact with their grandparents serves the best interests of the child. Nevertheless, in the absence of a specially enacted statute, grandparents ordinarily have no right to visit and communicate with grandchildren if both parents object to the visitation or communication. If visitation has been denied, the grandparents will be required to file a petition in the appropriate court to establish entitlement to visitation.
The prevailing opinion is that statutes that permit grandparent visitation do not also enable visitation by great-grandparents. Some states have enacted statutes that specifically extend court-ordered visitation rights to the great-grandparent level.
Marital Settlement Agreements
Primary physical custody, that is, where the child will live, is generally awarded to one or the other of the parents, even in a joint or shared custody arrangement. The courts favor awarding physical custody to one parent because it is generally felt that a child needs a stable environment, continuity of attendance in one school and a place that the child considers to be his home. Where primary physical custody is awarded to one parent, provision is usually made for extended visitation, as during the summer recess, with the non-custodial parent. Ideally, issues of child custody, support and visitation are resolved between spouses amicably. Marital Settlement Agreements (Separation Agreements) can be entered into before a divorce action is filed or at any time during the pendency of a divorce proceeding. Most litigated divorces are settled before final hearing. The Marital Settlement Agreement should set forth the agreements of the parties on all litigated issues. Where grandparent visitation may become an issue, it is advisable to include an appropriate provision that addresses visitation in the settlement agreement.
In recent years, the law has increasingly recognized that grandparents may have a legal right of visitation if such visitation is in the best interests of the child. Ordinarily, pursuant to the controlling statutes, the court must make certain specific findings of fact prior to granting grandparents visitation rights with their grandchildren.
The Best Interests of the Grandchild
The court must make an initial finding that it is in the best interest of the grandchild that the petitioning grandparent be granted visitation rights. In determining whether visitation is in the best interest of the child, the court will consider such factors as the amount of potential disruption in the grandchild’s life that extensive visitation will have; the suitability of the grandparent’s residence; the amount of the supervision that will be received by the grandchild; the age of the grandchild; the age, physical and mental health of the grandparents; the emotional ties between the grandparents and the grandchild; the moral fitness of the grandparents; whether the parents’ general authority to discipline the child will be undermined by grandparent visitation and the totality of circumstances surrounding the grandparent’s visitation.
Psychologists, Social Workers and Others
In making a determination as to whether court-ordered visitation is in fact in the child’s best interests, the court will often accept and consider expert testimony from psychologists, social workers and others who may have close ties with the child, such as teachers.
In Camera Proceedings
The judge may have an in-chambers ( L. ‘in camera’), off-the-record, conference with the child so that the grandchild will not be subjected to the trauma of having to testify in open court as to the child’s preferences in order to determine whether visitation is appropriate and under what circumstances and times visitation may take place. The wishes of a child may be an important factor in deciding whether to allow visitation, but will not be determinative. The opinion of the child will be given greater consideration as the child gets older and becomes more mature.
Many statutes require the grandparent to have made repeated attempts to visit the grandchild during the twelve months proceeding the date a petition was filed and that such visitation was denied by the custodial parent. The grandparent must establish that visitation would not take place without court intervention and must further overcome the presumption that the parents’ decision to refuse visitation was reasonable.
Ordinarily, where the parents of a minor child are deceased, visitation rights will be awarded to grandparents because visitation is generally determined to be in the children’s best interests and would result in a positive influence on the child. Some courts, however, have ruled that grandparents do not automatically step into their deceased children’s shoes with regard to court-ordered visitation rights with their grandchildren, and that a determination that the petitioning grandparent is a fit and proper person to have visitation rights must first be made.
One Parent Deceased
Where one of the parents of the grandchild had predeceased, the court will utilize the best interests of the child test to determine whether the grandparents are entitled to visitation with their grandchildren. The court will consider the opinions of the surviving parent in reaching a determination.
Some courts have held that where minor children were adopted following the death of one or both of the children’s parents, court-ordered visitation rights in favor of the children’s grandparents were permissible where such visitation was in the child’s best interests.
After Stepparent Adoption
A grandparent’s rights to visitation with a grandchild is not automatically terminated following the death of the child’s biological parent by the adoption of the child by the biological parent’s new spouse.
Stepparent Custody and Visitation
A stepparent who does not adopt a spouse’s child usually cannot claim custody of the child following a divorce, although the court may in appropriate circumstances grant visitation.
The court may award grandparents custody of their grandchildren, but generally only if neither parent desires custody or they are unfit. In determining whether the grandparents will be awarded custody in those circumstances, the court will apply the ‘best interests of the child’ test. Where grandparents have had custody for a substantial period of time and have in essence established a long-term parent/child relationship with their grandchild, the courts may be reluctant to change custody, even if the parents are fit.
If the custodial parent does not permit grandparent visitation, and if there is a statute that has been enacted permitting grandparent visitation, the grandparent(s) must file a petition (request) with the court alleging the statutory authority for visitation and that visitation would be in the best interests of the child. The custodial parent(s) are required to file a response to the petition indicating the basis for denial of visitation.
Guardian Ad Litem
The court may appoint a Guardian Ad Litem to protect the interests of the child and to assist the court with gathering information as to the child’s best interests.
After an evidentiary hearing, the court will enter an Order setting forth whether visitation will be allowed and establish a schedule and notice requirements. The court through contempt orders punishable by imprisonment will enforce visitation orders that are not obeyed.
Child visitation orders are by their very nature subject to judicial review; the court will revisit this issue if there has been a change in circumstances that may bear on whether visitation is in the child’s best interests.