Guidelines for granparents who need to seek a court order to see grandchildren

Many grandparents find the notion of not having contact with their grandchildren inconceivable. In truth, however, there are many grandparents who are confronted with the reality of losing the right to visit and spend time with grandchildren. Several grandparents have managed to negotiate a resolution with and without assistance from the courts and others have had to suffer the loss and live without seeing their grandchildren.

Laws for grandparents’ visitation in the United States

In the United States (US) there is no set law on Grandparent’s rights. It would be simpler for grandparents if there was such a law, however in the US grandparents do not have many legal rights. Most cases are decided based on the laws of an individual state and relevant case law. In the US Supreme Court in 2000, in the case of Troxelv V. Granville the court came to the decision to overturn uniform laws for grandparents seeking visitation rights as it was believed that this law violated the rights of parents to raise their children in a manner that they deem fit. Every state has a statute providing visitation rights for grandparents; however this does not mean that winning a case will be easy. Some of these statutes vary between liberal and strict rules. A judge will also take case law into consideration when making a decision. Which means a judge may look at the outcome of previous cases in order to make a decision.

Avoiding going to court

In most cases the parent’s wishes regarding whether their children can have contact with their grandparents is taken seriously by the court. Grandparents need to be aware that going to court should be last resort, other remedies should be explored. Mediation can often replace going to court and many families have chosen to mediate their differences and have managed to work things out. Some courts will not proceed until all other options have failed.

If the grandparents are having some contact with their grandchildren then this weakens their case. If the parents have cut off all contact then the chances of a favorable outcome are better. In some states that have strict laws, grandparents cannot file an application to the court unless visitation has been completely denied.

The process of going to court can be extremely stressful on the family and grandparents will need to weigh this decision carefully. If going to court is likely to cause problems and rifts within the family, they will need to consider if it is really worth it. Looking for other ways to negotiate the issue of visitation is always better than going to court. Setting up a family counseling appointment for all parties to meet and hopefully resolve the issue of visitation is better than going through the court process.

The likelihood of success

If the grandparents have tried all other options to regain visits with their grandchildren, then it may be time to ask an attorney to proceed with court action. It is advisable that in a case like this that grandparents engage the services of a good family lawyer, preferably someone who is experienced in custody and visitation cases. It is a good idea to seek advice on whether their case will be a success, even if hiring an attorney is something the grandparents in this situation cannot afford. Grandparents can file to the court on their own, however when it is a case involving the future relationship they may or may not have with their grandchildren, it is advisable to consult with a lawyer.

Grandparents should have an idea of what their chances are of winning before they begin this process. A law suit will have a better chance of success if the grandparents have documented their relationship with their grandchild. Documenting their relationship is a good step for grandparents to protect their rights. Having a record of a long standing, loving and close relationship with their grandchild will show the judge that the child would benefit from his or her relationship with their grandparents.

As stated earlier, if visitation has been cut off, then the grandparents have a much better chance of winning. Is the family intact? If the grandchildren have not been affected by divorce or the death of a parent then this may weaken the case. If there are grandchildren that were born out of wedlock, then the process might get tricky as paternity will need to be established before the law suit can advance. If the grandparents have provided a custodial role in their grandchild’s life then this may help them in court. If they provided childcare or took the children to doctor’s appointments then this is seen as a parenting role and will strengthen the case.

The best interests of the child

Any law suit or court decision that involves decisions regarding children will be decided on what is in the best interests of the child. The judge will be wanting to know above all else if the grandchildren will benefit from a relationship with their grandparents. Grandparents will need to prove that their visits will not harm their grandchild in any way. This is not as simple as it may seem, as some judges firmly believe that overruling the wishes of the child’s parent may cause conflict within the family and this would not be in the child’s best interest.

When there is conflict in the family

If visitation was cut off due to a conflict within the family then it is probably pointless to go to court to get visitation rights back. Going to court may exacerbate the problems in the family and make communications worse. There are many children who have a falling out with their parents and they simply cut their parents out of their lives. Whether the decision is rational or fair doesn’t really matter, sorting out the conflict before raising the issue of visiting the grandchildren is what is important. If efforts cannot be made to work through the conflict then it is debatable as to whether the grandparents will have healthy influence on their grandchild.

In a courtroom situation the judge is going to want all the details of how and why relationships broke down badly enough for visitation to be stopped. Once the judge hears what has occurred within the family, he or she may not be so keen to award visitation to the grandparents. Trying to solve any conflict or problems before running off to court is the ideal way to handle it. If this is not possible, then it might be in the best interests of the grandchildren for the grandparents to let go and back off for a while. There are many parents who stir up conflict and if a judge senses this is what is happening in the family he or she will probably not override the parent’s decision to cut off all contact.

Finally; it can be difficult for grandparents to accept that their relationship with their grandchildren is not as important as they might think it is. Grandparents can get so caught up in their love for their grandchild that they quite often overstep boundaries and upset the parents. A parent’s right to raise their children without interference trumps a grandparent’s rights to have contact with their grandchildren, so this makes it very difficult. Unless the parent or parents can be proven unfit in some way, then maybe the grandparents have a reasonable argument, a judge will decide on what is in the child’s best interest.

There will usually be certain circumstances that have led to grandparents not being allowed contact with their grandchildren. Some of these circumstances can produce tricky legal problems. This kind of law suit is one best avoided as it may cause more pain than healing. If negotiation, counseling and legal mediation can solve the problem, then it’s better to go that way and keep this issue away from the courts. For resources and further information: State-by-state guide to grandparent rights