'Unfit Parents' in the Context of Grandparent Visitation Laws

Meaning of Fitness Can Vary

parents unfit to make decision about grandparent visitation
Winning visitation may mean proving that parents are unfit to make a decision about visitation. Eric Audras / Getty Images

The term "unfit parent" is thrown around a lot in child custody cases, but when it is invoked in grandparent visitation cases, its meaning is a little different.

Generally an unfit parent is one who has been abusive or neglectful. Clearly, if grandchildren are in the custody of conventionally unfit parents, grandparents will want to do something about it, such as reporting the situation to authorities or attempting to get the child put in the custody of the grandparent.

In the context of grandparent visitation, however, fitness may be defined differently.

Parents Are Unfit to Make Certain Decisions

In the context of a suit for grandparent visitation, an unfit parent may simply be one who is unfit to make a decision about visitation and has made a decision that harms the child. It does not necessarily mean that the parent is abusive or neglectful in other ways.

The concept that a parent's fitness must be impugned can be traced to the U.S. Supreme Court case of Troxel v. Granville, which found that "fit parents" are presumed to make decisions that are best for their children, even if that decision is to cut off the grandparents. The court did not, however, spell out what constitutes fitness. That had to be defined by each state through its legislative and judicial processes.

The grandparent who is seeking visitation must prove that visitation is in the best interests of the child.

Some states go farther and require that the grandparent prove that the child will suffer harm if visitation is denied. This is what is commonly called the harm standard.

If it can be shown that not seeing a grandparent will cause harm to a child, then it can be reasonably assumed that the parent was not "fit" to make that particular decision.

Occasionally a court will rule in favor of the grandparents out of concern that a child could be facing actual physical harm. This was the case in the Massachusetts case of Sher v. Desmond, but that is hardly a typical case.

The courts have also been more likely to grant visitation to the parents of a deceased parent, reasoning that cutting a child off from any contact with a deceased parent's family could be considered harmful. 

Some States That Require Parental Unfitness

Although any ruling that overrides a parent's decision implies a finding of parental unfitness to some degree, some states go farther. Below is a sampling of states in which parental unfitness is specified as a requirement for visitation to be awarded. Click on the links for more information. If your state is not listed, check out grandparents' visitation rights by state.

Alabama: In a controversial decision, the Alabama Supreme Court ruled "a prior and independent finding of parental unfitness" is required before the state can intervene in family matters. The Alabama statutes about grandparent visitation remain on the books but are useless for most grandparents.

Connecticut: The statutes do not require a finding of parental unfitness, but in the case of Roth v.

Weston, the Connecticut Supreme Court found that a child would have to be "neglected, uncared-for or dependent" to justify awarding grandparent visitation over a parent's objection.

South Carolina: In the case of Camburn v. Smith, the South Carolina Supreme Court ruled that visitation cannot be awarded over the objections of fit parents. Parents must be shown to be unfit by "clear and convincing evidence." Subsequently the South Carolina statutes were revised, but the resulting statutes still set a difficult path for grandparents to win visitation.