The Best Interests of the Child Standard and Grandparent Visitation

If you are a grandparent and do not get along with your grandchild’s parents, do you have a right to see your grandchild even if the parents do not consent?  Prior to 2000 the answer was a resounding yes.  But now it is complicated.

Prior to 2000 many states had statutes allowing grandparents to petition a court for a visitation order with their grandchildren if the parents would not allow it. In 2000 the Supreme Court required some states to rewrite their visitation laws because they trampled on the parents’ constitutional rights.

Supreme Court Rule

In Troxel v. Granville the Court struck down a state ruling that gave grandparents the right to visitation over the objection of the child’s parent.  The court held that a state may not force a parent to allow grandparent visitations because it violates the parent’s “fundamental rights and liberty interests … to make decisions concerning the care, custody and control of their children” under the Fourteenth Amendment. The court ruled that states may allow visitation in certain circumstances, but it may not create a right to visitation in all situations.

In Troxel, the trial judge allowed visitation because the parent had not shown that visitation by the grandparents would harm the children. In overturning the trial court’s decision, the Supreme Court ruled that there is a presumption that “a fit parent makes decisions in the best interest of their child.” After the ruling some state legislatures had to revisit their grandparent visitation statutes to comply with the new rule. Statutes had to be rewritten because grandparents must now prove that the parent’s decision to refuse visits is not in the child’s best interest.

California’s Two Step Test

For example, in California if a parent is deceased the grandparent may be granted visitation if the court finds it is in the best interests of the child. But if both parents are alive but separated or divorced a court must go through a two step analysis before granting visitation rights to the grandparent. Family Code Section 3104 requires a court to find: 1) a pre-existing relationship between the child and grandparent and that visitation is in the child’s best interest to keep that relationship going, and 2) the child’s interest in their relationship with a grandparent outweighs the parent’s interest in exercising their parental authority over their child.

Options

What can grandparents do to ensure visitation with their grandchildren without having to resort to a court order? Some states require divorcing parents to attend a mediation session for child visitation prior to a court hearing. The purpose is for the parents to come to an agreement with a professional mediator rather than having the judge decide it. Though grandparents usually cannot attend the mediation, the parents can include the issue of grandparent visitation in the mediation session. If it is agreed to it becomes part of the visitation order.

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