Recently, state supreme courts in Utah, Colorado, and Pennsylvania ruled in favor of a grandparent’s right to visit their grandchild.
These rulings indicate the recent shift taking place from six years ago when the U.S. Supreme Court, in Troxel v. Granville, curbed these rights in the state of Washington. The Court said that the visitation law was too broad for allowing “any person” to request visits at “any time.” The decision also solidified a parent’s right to decide who gets to visit with their children. Following the 2000 ruling, state courts seemed more likely than not to follow the Supreme Court’s lead.
Since this decision, grandparent visitation laws in many states have been revised, and state supreme courts have acknowledged and worked with these changes-especially in certain situations, such as the death of one of the parents.
· Utah case: Utah Supreme Court upheld the statute granting continued visitation. A 10-year-old girl whose mother died suddenly can keep visiting with her grandparents in spite of his father’s claim that the law violates his parental decision-making rights.
· Colorado case: Colorado Supreme Court ruled that a boy’s paternal grandparents can keep visiting him, even though his grandparents could not prove that denying visitation would harm him.
· Pennsylvania case: The state’s Supreme Court ruled that the father of an 11-year-old boy whose mother died cannot restrict grandparent visitation to just once a month, even if the father was considered mentally fit to make such decisions.
The AARP (formerly called the American Association of Retired Persons) reports that: 4.5 million underage children are living with their grandparents.
California Family Code let’s grandparents file for visitation:
· If one of the child’s parents has died.
· If the grandchild’s parents are no married, separated, or divorced.
· During custody proceedings.
· If the child is not living with either parent.
· There must be a pre-established grandparent-grandchild relationship.
· Visits cannot get in the way of a parent’s own visitations.
· Visits must be in the best interest of the grandchild.
Grandtimes.com offers the following guidelines for grandparents wishing to retain visitation rights with grandchildren in the event of divorce, separation, or the death of one of the parents:
· Don’t be too aggressive. If the custodial parent remarries, give him or her plenty of time to make the new marriage work. Such family transitions are usually difficult for young children, who may be torn by loyalty to the divorced or deceased parent.
· Don’t run out and start a lawsuit. First, open a line of communication with the parent or parents. You might even use a neutral third-party mediator.
· When there is no other recourse, call your local bar association for referral to a family-law attorney, preferably one with experience in third-party (other than parental) visitation rights. When you meet with the attorney, be prepared with documentary evidence and lists of witnesses to support your contention that it is in the “best interests of the children”-the legal standard in most states-for them to see you. Evidence that a consistent, caring relationship existed between you in the past is important.
· If there is animosity between you and the children’s parents, do everything you can to keep the youngsters from getting involved in it.
· Remember that grandparent visitation rights are not intended or designed to supersede parental authority. Grandparents should step in only when there is a threat to the children’s safety. If there is evidence that the children are being physically or emotionally abused, contact the department of social services for the protection of minor children in the state where your children live.
· Be aware, too, that the law applying to your visitation rights is the law in the state where the grandchildren live.
If you are a grandparent who is seeking visitation with your grandchild(ren) in Santa Clara County, Monterey County, or Alameda County, our attorneys at Sagaria Law, P.C. can help you. For your convenience, we have offices in Fremont, Monterey, and San Jose. Contact us online for a free consultation.
Recent Legal Rulings Favor Grandparents, USAtoday.com, September 12, 2006
Grandparent Visitation Rights, Grandtimes.com
Related Web Resources:
Troxel V. Granville
Visitation Rights of Grandparents, Utah
In the Matter of Petition for Adoption of C.A., Colorado Supreme Court, June 26, 2006
Hiller v. Fausey, Pennsylvania Supreme Court, August 22, 2006 (PDF)
In the Matter of the Estate of Samantha Thurgood, Utah Supreme Court, August 25, 2006 (PDF)
Grandparents Legal Section, Grandparenting.org
Grandparents’ Rights Organization