Right to Visitation of Grandchildren in Intact Families

Disruption of Family Unit Required in Most States

Intact families protected from grandparent visitation petitions
Even if they aren't particularly happy families, intact families have special protection in some states. Photo © Josh Rinehults | Getty

Although every state has a statute allowing for grandparent visitation rights, those rights are not created equal. One way to classify states is by what they say about intact families. In a majority of states, grandparents cannot sue for visitation of grandchildren living in intact families.

What Constitutes an Intact Family?

The exact definition of an intact family varies from state to state. Generally it means that the parents are living together with their children.

Some state statutes may require that they be married. One state, North Carolina, considers a single parent living with children an intact family.

Most grandparents will be able to file a suit for visitation only if the family units of the grandchildren in question have been disrupted in some way so that they are no longer consider intact. The circumstances most often mentioned in statutes are divorce or separation and death of a parent. Some states add incarceration of a parent, disappearance of a parent and abandonment by a parent.

In some states, grandparents can petition to visit a grandchild who was born out of wedlock. Usually paternity must have been established before paternal grandparents have rights. Grandparents may have visitation rights to children who have been removed from a home by social services. Generally, they do not have such rights once a child has been adopted, unless the adoption is by a stepparent or family member.

Why Are Intact Families Special?

Most states have adopted a policy of not interfering in family matters unless it is necessary to protect some family member. Parents have the right to make decisions about their children, in most cases. This is a principle firmly based in law and reinforced in the Supreme Court case of Troxel v. Granville.

For example, if Bob is your son and he and Barb are still married, the expectation is that you will make arrangements with Bob to see your grandchildren. The state sees no reason to get involved. But if Bob dies or he and Barb separate with Barb getting custody, the scenario changes. Your access to your grandchildren just became more precarious. In such cases, the state is more willing to intervene.

Of course, grandparents must start the ball rolling by filing a suit. They still face an uphill battle, but they have cleared the first hurdle, which is to have standing to bring a suit.

What About the Other States?

Most states specify that intact families cannot be sued for visitation rights, although they may not use that exact term. What about the others? Do not make the mistake of thinking that these must be states in which it is easy to win a grandparent visitation suit. That may or may not be so.

They may be states that require compelling circumstances in order for visitation to be granted. In Connecticut, for example, visitation may only be requested by a person who has had a "parent-like relationship" with a child and only if the denial of visitation would result in "real and significant harm" -- two tough hurdles.

Yet Connecticut law does not extend any special considerations to intact families.

On the opposite end of the spectrum, Idaho doesn't take a position on intact families because its statute consists of a single sentence stating that grandparents and great-grandparents are entitled to "reasonable visitation rights" upon a "proper showing" that such would be in the child's best interest. In Tennessee, grandparents can sue for visitation if the grandchild lived with the grandparent for a period of at least 12 months and was removed by the parent, no matter what the parental unit looks like.

Among the other states that do not exempt intact families from visitation suits are Delaware, Kentucky, Montana, New Jersey, North Dakota, Oregon, Rhode Island, South Dakota, Utah and Wisconsin. Most of the states not listed here do offer some protection to intact families.

See visitation rights by state. Also take a look at how states are classified according to their visitation laws.

Disclaimer: Law is constantly being changed, either by legislative action (statutory law) or by court decisions (case law). The information contained in articles such as this one should be considered as a starting point only. Most grandparents seeking visitation will find it prudent to seek legal advice.