State law, not federal law, governs family matters, which is why we don't have uniform laws about grandparents rights. The laws differ greatly from state to state. Still, certain words, phrases and concepts occur over and over, and grandparents considering a court case should understand their meanings. Here are a few of the most common.
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To have standing means to have the right to bring suit in court. In order to have standing, one must be directly affected by a situation. In addition, the circumstances must be of the type that can be redressed in court.
State statutes determine who has standing in grandparent visitation cases. Stepgrandparents and great-grandparents are treated differently in different states. In some states they do not have standing. Others who are frequently denied standing are the parents of parents who have l...ost or given up their parental rights.
In some states, grandparents do not have standing to sue for visitation with grandchildren living in an intact family. Most of the time that means a family in which the children's parents are married and/or living together. See the discussion of intact families farther down the page.
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All states use the "best interests" standard in visitation cases (sometimes rendered as "best interest"). The term is self-explanatory, but there is no universal list of factors to be considered in determining best interests. Of course, a child's physical health and safety are considered, but emotional and psychological factors can be considered as well.
In the 2004 Kentucky case of Vibbert v. Vibbert, the court listed seven factors that should be considered in determining a... child's best interests. These "Vibbert factors" — seven plus an eighth added later — are often considered in various states when courts are considering best interests.
In addition to questions of a child's physical and emotional health, many state statutes specify that visitation cannot be detrimental to the parent-child relationship. The reasoning is that maintaining a healthy parent-child relationship is central to a child's well-being.
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In some states, grandparents must show that a denial of grandparent-grandchild contact will be harmful to the grandchild. The requirement is phrased differently in different statutes, sometimes with qualifiers such as "actual harm" or "significant harm."
Grandparents are most likely to win a case in a state that requires a showing of harm if they have shared housing with the grandchild, have provided child care and in other ways had a parental-type relationship with the child.
If... one of a child's parents is deceased, the court will sometimes award visitation to the grandparents on that side of the family. Sometimes the reasoning of the court is that it can be harmful to a child to have no connection with one side of his or her family.
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Since the decision in the Supreme Court case of Troxel v. Granville made it clear that "fit" parents make appropriate decisions for their children, parents' fitness has become an issue in visitation cases. Grandparents who want contact with their grandchildren may have to prove that parents are unfit to make a decision about contact. That's not the same thing as proving that they are neglectful, abusive or generally unfit to care for their children.Continue to 5 of 5 below.
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In some states grandparents have no standing to sue for visitation with grandchildren living in intact families. The definition of an intact family varies from state to state. The most common definition is a family in which the parents are living together. Some specify that parents are married and living together. In the North Carolina case of Fisher v. Gaydon, the court found that a mother living with her children constituted an intact family.
Even if a state does not specify that intact... families are exempt from grandparent visitation suits, it is generally more difficult to win visitation when a family is intact.
In a few cases, parents have argued that exempting intact families from certain types of lawsuits violates the principle of equal protection under the law. According to this line of thinking, a parent who is single, divorced or widowed is held to a different standard than a married parent. Thus far the courts have not upheld this line of reasoning.