Your Guide to Grandparent Rights

Do you know your legal rights?

By The Editors

As a service to our readers, has established the American Grandparents Association,TM dedicated to ensuring the best for grandparents and their families. One goal of Association is to become a key resource for grandparents who are physically removed from their grandchildren and would like to find a way to visit them. We are providing a guide to grandparent rights in all 50 states. Should you need specific legal advice on your own grandparent rights, consult a lawyer in your home state who specializes in family law and who may know of any recent changes in your state's laws.

Families can splinter for a number of reasons: divorce, the death of a parent, drug or alcohol abuse, incarceration. When those situations occur, grandparents do have certain legal rights, and can seek visitation with grandchildren or even custody, but the relevant laws vary from state to state. Understanding your own basic rights can help ensure that your relationship with your grandchildren doesn't end even if the children's relationship with your adult child does.

The State of Grandparent Rights

Grandparents in every state in the United States have rights, in some circumstances, to be awarded custody of their grandchildren or to be awarded court-mandated visitation with their grandchildren. Grandparents' rights are not constitutional in nature....Recognition of grandparents' rights by state legislatures is a fairly recent trend, and most of the statutes have been in effect for less than 35 years.

Federal legislation may affect grandparents' rights, though these rights are based primarily on state law. Congress passed the Parental Kidnapping Prevention Act in 1980, which requires that each state give full faith and credit to child custody decrees from other states. Federal legislation passed in 1998 also requires that courts in each state recognize and enforce grandparental visitation orders from courts in other states. All states have adopted a version of the Uniform Child Custody Jurisdiction and Enforcement Act (previously the Uniform Child Custody Jurisdiction Act), which requires courts in the state where a child resides to recognize and enforce valid child custody orders from another state. Though the UCCJEA is not a federal statute, the provisions of this uniform law as adopted in each state are similar.

A number of courts have recently determined that state statutes providing visitation to grandparents are unconstitutional. The United States Supreme Court in the 2000 case of Troxel v. Granville determined that the Washington visitation statute violated the due process rights of parents to raise their children. This case and similar decisions by state courts have caused several state legislatures to consider bills that would modify or completely revise the visitation rights in those states. Grandparents who seek to attain visitation rights should check the current status of state legislation in their respective states.

Factors Considered for Custody or Visitation

Courts grant visitation or custody to grandparents only when certain conditions provided in the state statutes are met. Conditions for a grandparent to attain custody differ from those conditions required for visitation rights. A grandparent should be familiar with the conditions for either custody or visitation before determining whether to file a petition to request either from a court of law.

Best Interests of the Child

Courts in every jurisdiction must consider the "best interests of the child" when granting custody or visitation rights to a grandparent. In some states, the relevant statute provides a list of factors the court should considered when determining a child's best interests. Other states do not provide factors in the statute, but courts in those states have likely identified factors in custody and visitation cases interpreting the state statutes.

The following factors in determining the best interests of the child are among those included in state statutes and case law:

  • The needs of the child, including considerations of physical and emotional health of the child, the safety of the child, and the welfare of the child
  • The capability of the parents and/or grandparents to meet the needs of the child
  • The wishes of the parent(s) and the grandparent(s)
  • The wishes of the child, if the child is capable of making decisions for himself or herself
  • The strength of the relationship between the grandparent(s) and grandchild
  • The length of the relationship between the grandparent(s) and grandchild
  • Evidence of abuse or neglect by the parent(s) or grandparent(s)
  • Evidence of substance abuse by the parent(s) or grandparent(s)
  • The child's adjustment to the home, school, or community
  • The ability of the parent(s) or grandparent(s) to provide love, affection, and contact with the child
  • The distance between the child and the parent(s) or grandparent(s)

Requirements for Awarding Custody to Grandparents

Statutory provisions for child custody (termed "conservatorship" in a few states) are usually less specific than the statutes regarding grandparent visitation. Courts must first consider the relationship of the parent or parents with the child before considering whether granting custody to grandparent(s) is appropriate. Several states specifically include consideration of grandparents as custodians if both parents are deceased. If either or both parents are alive, courts in most states will presume that the parent of the child should retain custody. Grandparents must generally prove the parent(s) unfit in order to overcome the judicial presumption in favor of the parent. Even if the relationship between the grandparent and grandchild is strong, it is very difficult for a grandparent to attain custody of a grandchild against the wishes of the parent or parents.

Requirements for Awarding Visitation to Grandparents

State statutes providing visitation to grandparents generally require that a number of conditions occur before visitation rights can be granted. The marital status of the parents must be considered in a majority of states before a court will evaluate the relevant factors to determine if visitation is appropriate. In some of these states, the parents' marital status is considered only if the grandparent or grandparents have been denied visitation by the parents. In other states, marital status is considered only if the grandchild resided with the grandparents for a certain length of time.

A minority of states require that at least one parent is deceased before a court can award visitation to the parent of the deceased parent of the child. For example, a maternal grandparent in one of these states may be awarded visitation only if the mother of the child is deceased.

State statutes vary in their treatment of cases in which a grandchild has been adopted. In several states, adoption by anyone, including a stepparent or another grandparent, terminates the visitation rights of the grandparent. In some states, adoption by a stepparent or another grandparent does not terminate visitation rights, but adoption by anyone else does terminate these rights. In other states, adoption has no effect on the visitation rights of grandparents, so long as other statutory requirements are met.

Once the statutory conditions for visitation are met, grandparents must establish the factors that courts may or must consider to grant visitation rights. In every state, grandparents must prove that granting visitation to the grandchild is in the best interest of the child. Several states also require that the court consider the prior relationship between the grandparent and the grandchild, the effect grandparental visitation will have on the relationship between the parent and child, and/or a showing of harm to the grandchild if visitation is not allowed.

Courts' Jurisdiction over Custody and Visitation Cases

Parties Residing in the Same State

Each state provides the appropriate venue which can make custody and visitation determinations in a case where all of the parties reside in the same state. Where a divorce is pending, the appropriate venue for making a custody or visitation decision involving the grandparents and grandchildren is almost always the court hearing the divorce proceedings. Some states require visitation petitions to be filed with another domestic relations suit. Some states also permit visitation requests after a domestic relations order has been rendered or as an original proceeding.

Parties Residing in Different States

If a child's parents and/or grandparents live in different states, one of several laws will determine the appropriate court to hear a custody or visitation case. If a valid custody or visitation decree has been entered in one state, the Parental Kidnapping Prevention Act requires that another state must enforce and must not modify the decree. Another state may modify the decree only if the original state no longer has jurisdiction over the case or has declined jurisdiction to modify the custody or visitation decree. Congress amended this statute in 1998 to include a grandparent in the definition of "contestant."

If no state has made a valid custody determination, the provisions of the Uniform Child Custody Jurisdiction and Enforcement Act, as adopted by each state, will apply. A court in a particular state has power to hear a custody case if that state is the child's "home state" or has been the home state of the child within six months of the date the legal action was brought and at least one parent continues to reside in the state. Other situations include those in which a state with jurisdiction over a custody case declines jurisdiction or no other state may assert jurisdiction over the child.

Source: Encyclopedia of Everyday Law, © Gale Cengage. All Rights Reserved.


My heart breaks when I read some of these stories! If any of you would like to talk about these concerns some more, please come into the Community, where you can converse w/ others. There you'll find various forums that may fit, such as Mothers-in-Law Anonymous, Grandparents without Grandchildren and Grandparents Unplugged. If you regularly take/have taken care of your grandchildren or have/had/are seeking custody, I also invite you to come and talk with us in Grandparents Caring for Grandkids.

To find a link to the Community, just go to the very top of this page (above the site title) or scroll down to the bottom (under the list of features).

rosered135 on 2015-03-06 04:22:42

I was there when my granddaughter was born. she and her parents lived with me for the first 2 yrs of her life. my son Inlaw killed my daughter 3 months ago . In front of my grandbaby. cps took her and gave her to my son and his wife my son had only seen the baby 4 times sence she was born. heres wear it gets tuff. my daughter the was killed had told not only family but also many friends that if anythinshe ran to me g ever happend to her that the baby is to go to her sister to raise. who has been in the babys life every day sence she was born and her 2 kids who are as close to the baby as if they were all sisters they saw each other everyday of there lifes. well my son and his wife have decided that i and my daughter and the rest of the family are'nt going to be in the babys life. the baby is so attached to me ,that at her second birthday party she stood in a corner by herself so sad , but when i walked in she ran to me screaming with joy , i could'nt put her down .when it came time to go home this little girl screamed so loud everyone cryed for her . and the samething happend at christmas . my son said i was'nt aloud to see her anymore because for 2 days after she saw me she was to hard to handle. i had never been away from that baby ever not one night ever. now i've seen her twice in 3 months . can someone tell anything i can do to see my grandbaby please this is killing me. i live in ca. all advice needed and welcomed thank you on 2015-02-28 19:28:04

I raised my Granddaughter since she was 2 months old with sporadic visits from her mother her mother decided after 3 years she was going to take her and move out of state I took her to court for custody and lost custody of my granddaughter her father is incarcerated and me being the paternal grandma what are my rights to visitation I have already filed the necessary papers on 2015-02-22 09:03:39

I'm a grand parent we have been taking care of your grandson from when he was born. he is 22 mouths now. His mom give soul and physical custody to our son now she is trying to take him back. No sure if she can. we have court next month our son was talking about giving us custody of our grandson. It's a sad situation we would love to continue taking care him just don't know our rights??

brendap2222 on 2014-12-03 16:26:07

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