Before You Sue for Visitation Rights

What Estranged Grandparents Need to Know

grandparents estranged from grandchildren may wonder about suing for visitation.
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When grandparents are denied contact with grandchildren, they may feel that an injustice has been done. The grandparents may have heard that they have a legal right to see their grandchildren, and, if the family rift appears to be permanent, they may consider litigation. This reaction is understandable. Being cut off from grandchildren can be agonizing, especially when there has been frequent and close contact between grandparents and grandchildren.

Still, grandparents who consider suing for visitation rights should have a very clear idea of the results of bringing suit against the parents of their grandchildren.

The Financial Cost

Almost invariably the first question that grandparents ask is about cost. How much will such a lawsuit cost? That question cannot be answered since legal fees are not fixed. Some grandparents are able to represent themselves in court at a great savings. Much depends upon the complexity of the laws in the state where the suit is filed. In addition, some cases are more straightforward than others, and some grandparents are more suited than others to handle the stress of representing themselves.

If the services of an attorney are required, the tab can easily run into tens of thousands of dollars. Besides the fees paid to the attorney representing the grandparents, parties to a suit must pay court costs. In some states, the party losing the suit may be asked to pay the court costs of the other party.

Other expenses may accrue, such as the cost of a guardian ad litem. This is an attorney or ​other person who could be appointed to represent the grandchildren. Another service that can carry a price tag is mediation. In addition, if the original suit is won, circumstances may compel a return to court at a later date, with more expenses involved.

 

In addition to considering the cost to them, grandparents should also consider the toll that a lawsuit may take on the finances of the parents. A financial hardship on parents often translates into hardship for children. 

Loss of Privacy

Another cost of going to court is a loss of privacy. Testifying in court means sharing one's family disputes with a number of people, said Karen A. Wyle, an appellate attorney acquainted with grandparent visitation disputes, in an email interview. First, of course, the grandparents will have to tell everything to their lawyer. Wyle, who is the author of an amicus brief in the case of Troxel v. Granville, warns that bringing suit also means asking friends and family "to get involved in an emotional family quarrel," if they have relevant information. In addition, grandparents and parents can expect to "testify about family history and dynamics" and be cross-examined on these issues. In some cases, parties to the suit may be asked to undergo a psychological evaluation.

Effect on the Grandchild

A recurring theme sounded by grandparents is their fear that their grandchild will feel abandoned by the grandparents. That is certainly a legitimate concern; however, grandchildren who are the subject of legal battles may also experience undesirable repercussions:

  • They may have to discuss personal family matters with attorneys, social workers, and judges.
  • They may feel pressure to choose between their parents and their grandparents.
  • They may feel guilt at being the center of conflict.
  • The suit may introduce doubts about their parents' authority or judgment.
  • Their living situation may become more tension-filled, especially if the suit creates financial hardship.

An action for grandparent visitation often follows hard upon another family disruption, such as divorce, the death of a parent or the incarceration of a parent.  The impact upon grandchildren who have already suffered one loss is bound to be considerable. The law requires that grandparent visitation decisions be based upon the best interests of the child, but it is seldom easy to determine what actions are in a child's best interests.

Alternates to Litigation

Considering the costs, financial and otherwise, of litigation for visitation rights, should grandparents consider other options? This is a question that only the grandparents involved can answer. In cases where grandparents have concerns about the well-being of their grandchildren that can only be allayed by contact with them, litigation can seem like the only solution. Parents who are abusive, who are substance abusers, or who have mental disorders do sometimes retain the custody of their children in spite of their lack of fitness. In these cases, grandparents may feel that they must have some contact with their grandchildren in order to keep at least a partial watch on their well-being.

In other cases, grandparents may be well-advised to try reconciliation or to give the situation time to resolve itself. Some family disputes do blow over. It may take years to re-establish good relationships, but grandparents who take their children to court, regardless of the outcome, are likely putting a permanent end to any hope of a cordial relationship.

Some families will benefit from counseling or mediation. Most often part of a court proceeding, families can also seek such services on their own. The major obstacle to the success of counseling or mediation is the difficulty of getting buy-in from all parties involved. Cost is also an issue. In addition, the counselor or mediator may be seen, justly or unjustly, as exhibiting bias or taking sides.

The Final Word

Every state in the United States has passed legislation establishing some rights for grandparents, although those rights are limited. This would not be the case without a widespread recognition of the importance of grandparents in children's lives and of the pain that can be caused when contact is denied. Still, grandparents who choose to litigate for visitation rights should be aware that that process, too, can be the source of considerable hardship and pain.