Iowa is unique in all the 50 states in regard to grandparent visitation. In Iowa, a grandparent has the right to sue for visitation with a grandchild only if the grandparent's child who was the parent of the grandchild is dead.
In addition to meeting that requirement, grandparents must clear three hurdles. First, they must prove that visitation is be in the best interest of the child. Second, they must prove that they have a "substantial relationship" with the child that predates the filing of the suit.
Third, they must overcome the "presumption" that the parent with custody has the right to make decisions about visitation.
The burden of proof is entirely upon the grandparents, and they can be charged court costs if they lose their case. Great-grandparents have the same rights as grandparents.
The Best Interests Test
Iowa law spells out what factors shall be considered in determining the child's best interest. These include:
- The child's prior relationship with the grandparent, as compared to prior relationships with parents, siblings and "other persons related by consanguinity or affinity"
- Whether the grandparent's residence is geographically close to the grandchild's residence
- How much time the child has available, considering also the parent's schedule
- The age of the child
- The child's wishes and concerns about visitation, in the event that the child is interviewed in chambers
- The child's health and safety
- The health, both mental and physical, of all parties.
- Whether a grandparent has a criminal history or a history of child abuse or neglect
- The parent's wishes, as expressed to the court
- Any other "best interest" factor.
The Substantial Relationship Test
Grandparents must also prove that they have a substantial existing relationship with a child.
There are three ways to show the existence of such a relationship:
- The child has lived with the grandparent for at least six months.
- The grandparent or great-grandparent has provided complete or partial financial support for at least six months
- The grandparent has had frequent visitation with the child, including occasional overnight visits, for at least one year.
The Parental Fitness Test
The parent of the child is presumed to have been correct in denying visitation unless the grandparent proves one of the following:
- The parent is unfit to make such decision
- The parent’s judgment has been impaired, as evidenced by neglect of the child, abuse of the child, violence toward the child, indifference toward the child, drug abuse, diagnosed mental illness or a "demonstrated unwillingness or inability" to consider the child's emotional and physical well-being.
Disputes Over Constitutionality
These three standards are difficult to meet. Earlier Iowa law set a much easier standard for grandparent visitation. That was before the U.S. Supreme Court's 2000 decision Troxel v. Granville. That decision strengthened parental rights and weakened grandparents' rights. Most states revised and strengthened their statutes concerning grandparent visitation in the wake of that decision.
Iowa made its laws exceptionally strict. Here's how it unfolded.
In 2001 the Iowa Supreme Court struck down a portion of Iowa's grandparent visitation statutes. One of the relevant cases was Santi v. Santi. In this case, the parents cut off the grandparents, saying that they repeatedly overstepped boundaries with regard to their grandchild. The grandparents sued for visitation, but because the younger Santis were an intact family and because their fitness had not been attacked, the grandparents lost the suit. The court decision commented that the original statute "substitutes sentimentality for constitutionality."
Further findings of unconstitutionality came in 2003 in the case In re Marriage of Howard. In this case a divorced mother denied the paternal grandparents visitation with her daughter.
A lower court awarded visitation, but the Supreme Court of Iowa denied visitation, saying that the grandparents had not shown parental unfitness and also had not demonstrated that denying visitation would be harmful to the child.
A final blow was dealt to the old statutes with the 2006 case of Spiker v. Spiker. The Iowa Supreme Court found that since the Iowa statutes had been found unconstitutional, any existing awards of visitation could not be enforced and would indeed be vacated if challenged in court.
In 2007 the legislature passed new statutes which made the provisions described above.
If a grandchild is adopted, a grandparent loses any right of visitation, unless the adopting party is a stepparent.
- Learn More: Can Grandparents Represent Themselves in Court?