Do Grandparents Have Legal Rights?

Yes, But Not as Many as You Might Think

SadGrandfather_TimHawley.jpg
The pain of not seeing grandchildren can be overpowering at times. Photo © Tim Hawley | Getty Images

There should be some kind of link between how much you care for a person and the amount of control you have over his or her life. And it should be a close correlation. But many grandparents are finding out to their sorrow that no such correlation exists in the case of their grandchildren. Instead almost all the control is in the hands of the parents.

Most of the time that arrangement works out well.

The parents call the shots, and the grandparents get to have the fun. But when parents make bad decisions and the grandparents try to intervene, they are typically turned away, leaving them to ask, " Don't grandparents have any legal rights?"

It's a very good question.

Parental Rights Are Strong

Most of the time, parents have the right to make decisions about their children. In cases that meet the legal definition of abuse or neglect, children may be removed from a home, although they are often returned at a later time. In almost every other scenario, parents retain control of their children, even when they make questionable decisions. If children are not at a serious risk of harm, parental decisions are allowed to stand.

Substance abuse tops the list of reasons why children are removed from their homes, but many times children are left in a home with a parent with substance abuse problems, because the allegations of abuse can't be proven, or because the parent's use is not considered to be a danger to the children.

(See Child Custody and Substance Abuse.)

To summarize: Grandparents may feel that they could provide a better environment for their grandchildren and that they could make better parenting decisions. It doesn't matter. Unless the children are removed from the home for some reason, grandparents aren't in the running.

If Grandchildren Need a New Home

If grandchildren are considered at risk and removed from their home, grandparents have the right to be notified. A 2008 law states that adult relatives must be identified and notified and also given the right to participate in decisions about what is going to happen to the children.

If they want to take over care of the children, grandparents may be treated much the same as other foster parents. In addition, grandparents can seek custody, but in most cases they will not be automatically given any special consideration. Their petition will be treated under procedures for any third-party petition. If the grandparents win the right to take care of their grandchildren, the custody arrangement can take several different forms.

What About Visitation Rights?

Grandparent visitation is different from custody. All states of the United States have addressed grandparent visitation in state law. In Canada, six provinces and one territory have legalized grandparents' visitation rights, and grandparents can still sue as interested parties in the other areas.

Just because an area has laws providing for grandparent visitation, not all grandparents have standing to file suit, and suits are expensive and hard to win.

(See Do I Have the Right to See My Grandchildren?) Even after a suit is won, it can be difficult to get a visitation order enforced. In spite of the difficulties involved, many grandparents each year make the decision to file suit.

Staying Involved Is Key

If you are ever put in the position of seeking custody or visitation, you will be in a position of strength if you have maintained robust ties with your grandchildren. If you think that you might be put in such a position, it's not too early to start documenting your relationship with your grandchildren.

Sometimes parents prevent grandparents from bonding with grandchildren. Parents can do this because their parental rights are so strong. If this is your situation, you should document your attempts to develop a relationship with your grandchildren.

Considering the state of grandparents' legal rights, the wisest course of action is to maintain good relationships with the parents of your grandchildren. Unfortunately, that's not always possible, which brings us right back to where we started from.

Grandparents may have a love for their grandchildren that feels very much like parental love, but their rights are far from parental rights.