If you are a grandparent or caretaker of a child, you may be faced with a challenge to your right to see that child at some time in the future. This often happens when the child’s parents divorce or when one parent dies and the grandparents and caretakers are sometimes left out of the visitation loop.
However, all states have some sort of grandparent visitation statute to provide legitimate parties a means of claiming a legal right to visitation with the child in question.
These statutes are restrictive in some states, providing only for grandparents and not for other caretakers such as stepparents and foster parents. In addition, some statutes limit court-ordered access to situations when the nuclear family unit has been dissolved, such as in the case of divorce or death.
Other states, however, offer more permissive statutes that include secondary caretakers in addition to grandparents and also eliminate the requirement of the dissolution of the family unit before a claim can be made.
In all cases, the “best interests of the child” is the standard used to determine whether such visitation should be granted.
This type of so-called “third party” visitation has been challenged by parents claiming that it violates their natural right to raise their child as they see fit.
In 2000, the U.S. Supreme Court considered a Washington case called Troxel v. Granville, 530 U.S. 57 (2000). In that case, the grandparents (parents of the deceased father of the children) sued to have certain visitation rights – even though the mother had not denied visitation, instead suggesting slightly less visitation time. The U.S. Supreme Court found that the Washington visitation statute unconstitutionally infringed on parents’ fundamental right to rear their children as they see fit. The justices acknowledged that grandparent visitation could be important to a child but decided that the language of the Washington statute was just too broad and that some deference has to be given to the child-rearing decisions of a fit parent.
Following the Troxel case and state-level litigation that followed, several states had to revise their grandparent visitation statutes to make sure they were enforceable.
In order to make a claim for grandparent or caretaker visition, you will need to petition the family court and request a hearing. The court would then consider whether or not your request is in the best interests of the child after considering all of the circumstances and evidence.
To determine whether or not you can make such a claim, you need to consult an attorney and/or your state’s laws regarding grandparent and caretaker visitation.