What Does the Term 'Grandparents' Rights' Mean?

Custody and Visitation May Be Arbitrated by Law

Grandparents rights of custody and visitation
ndparents and grandchildren don't always get to see each other as much as they would like. JHD / Getty Images

The term "grandparents' rights" usually refers to a grandparent's right to file suit for custody of or visitation with their grandchild or grandchildren. In the United States, these rights are not guaranteed by the Constitution, nor are they based in case law, the body of law that develops from customs and court decisions. Instead they have come into being through the passing of state statutes by state legislatures.

After a statute is passed, court decisions involving the statute can affect the way the law is interpreted and administered (case law).

Uniform laws about grandparents rights would make things much simpler, but family law has traditionally been the venue of the states. Federal courts can rule upon the constitutionality of state laws, however. In 2000 the U.S. Supreme Court ruled on a case involving third-party visitation rights, Troxel v. Granville, and the decision was not positive for grandparents. Basically the court said that decisions made by "fit parents" are presumed to be in the best interests of their children. Grandparents who wish to win visitation over the objections of the parents bear the burden of disproving that presumption, which can be a difficult task.

History of Grandparents' Rights

The idea of a grandparent's right to custody or visitation is a relatively new phenomenon, usually traced to 1960's.

Before that time, most families lived close to members of their extended family and maintained relationships with them, although the relationships were sometimes troubled. During the turbulent 1960's, the generation gap widened. Some grandparents, denied contact with grandchildren, began to work for legislation guaranteeing their rights.

The efforts of such grandparent activists were largely successful, and in the space of 30 years, every state passed some type of law providing for grandparent visitation. These laws fell far short of guaranteeing all grandparents contact with their grandchildren, however, especially after Troxel v. Granville.

Suits for Visitation

Suits for visitation rights may be filed when the parents have denied grandparents access to their grandchildren. Suits are more likely to succeed when the parent who is the child of the grandparent has died or when divorce or separation has fractured the family unit. Courts often uphold the right of an intact family to make decisions about visitation.

Suits for Custody

Grandparents who would like custody of grandchildren are not covered by special laws or statutes. Instead they must sue for custody as any other third party would.

Suits for grandparent custody are often filed following parental death, incarceration, mental illness or substance abuse, as well as in cases of child abuse or neglect.

Chances of Success

Almost always, grandparents will need to prove that they have had a strong existing relationship with grandchildren in order to win visitation.

For that reason, it is wise for grandparents to document their relationship with their grandchildren. Photographs and videos of time spent with grandchildren can be valuable. In addition, it is wise to keep receipts for expenditures and records of contacts, or attempts to make contact.

In both visitation and custody cases, the grandparent's chances are strengthened if the child has resided with the grandparent or if the grandparent has been the child's primary caretaker for an extended period of time. 

Parents' Rights

In the United States, parental rights are strong. Parents are considered to have the right to the care, custody and control of their children. These rights include deciding which individuals their children can and cannot see. Parental rights are seldom overruled unless the grandparents can prove that actual harm will result if they are denied contact with their grandchildren.

This is what is called the harm standard.

Winning custody requires a similarly high standard of proof. Grandparents cannot win custody of their grandchildren by demonstrating that they can offer a better standard of living than the parents do, or by showing that their parenting skills are better than those of the actual parents. Usually they must prove actual parental unfitness. 

Due to the complexity of the issues, legal advice should be sought by the grandparent in most cases involving a grandparent's right to visitation or custody.

Learn about grandparents' rights in the United Kingdom and grandparents' rights in Canada.