Most of us can agree that the relationship between a child and a grandparent is very special. Grandparents are role models, mentors, and supporters. But this relationship also enjoys a special status in the court system. This applies to several different situations.
First, if a child’s parent dies, a grandparent can seek court ordered visitation rights with that child. Second, during any divorce or custody proceedings, a grandparent may make a request to the court for reasonable visitation rights. If this type of motion is heard and denied, another motion cannot be filed for at least six months. Third, if a child has resided with the grandparents for at least twelve months and is subsequently removed from the home by the child’s parents, the grandparents can petition for visitation rights. Finally, the grandparent of a child adopted by a stepparent may also petition for a visitation order.
In all of these situations, the court must find such visits would be in the child’s best interests and would not interfere with the child’s relationship with the parents. In determining whether the visits are in the child’s best interests, the court must consider the amount of previous contact between the child and the grandparents. The court is not required to make detailed findings on the other best interest factors as it would in a custody case, and a full evidentiary hearing is not necessarily required. The court must also consider the underlying circumstances and fairness of the situation. In one case, the child had lived with the maternal grandmother for several months following the death of the child’s mother, which the court was required to consider. However, the Court of Appeals held that the District Court also should have considered that the grandmother had gained that temporary custody through some questionable “procedural maneuvering” that essentially kept the child away from the father.
If the court finds visitation to be in the child’s best interests, the amount of contact is up to the court. A parent has the fundamental and constitutionally protected right to make parenting decisions, including who gets to spend time with the child. In contrast, a grandparent’s right to visitation is a limited one created by statute. The grandparent must prove by clear and convincing evidence that interference with the parent’s rights will not occur. The District Court has considerable discretion in determining how much visitation a grandparent will receive. In one case, the Court of Appeals upheld a visitation schedule of one weekend per month to the child’s grandparent, even where that grandparent only saw the child for approximately 8 hours per month while the parent was alive. In another case, however, the Court of Appeals found that an order granting a grandparent 52 overnights per year as part of a rigid weekly schedule that would have interfered with vacations, holidays and religious services was excessive. The Court of Appeals made clear that a grandparent visitation schedule should not look like a shared custody calendar between two parents.
The statutes and case law surrounding grandparents’ rights are fairly complicated. A grandparent pursuing visitation should first consult with an attorney if at all possible.