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Can I Sue for Grandparent Visitation Rights?

Currently, all 50 states include grandparent visitation in statute. This allows grandparents (and occasionally other caregivers) the ability to petition the courts for the right to keep relations with their grandchildren via visitation. Laws are vastly different by state, though, as regards to details of grandparent visitation.

Grandparent Visitation Statutes

States with more restrictive visitation statutes allow only grandparents to obtain court-ordered visitation rights, leaving out other caregivers such as stepparents. Further, these rights are only granted in the event the child's parents are divorcing or upon the death of one or both parents. This is true in about 40 percent of American states. The remaining states have more permissive laws. These courts consider visitation requests outside of divorce, even when both parents are still living. Additionally, these states may consider visitation requests from caregivers other than grandparents if it is decided such visits are in the best interest of the child.

Setting Precedent for Grandparent Visitation Rights

The Supreme Court of the United States considered this question in 2000, during Troxel v. Granville, in which SCOTUS reviewed a Washington State case. The Washington case struck down a permissive grandparent visitation statute, deciding that the law was unconstitutional and that it infringed on the parent's right to make decisions on behalf of his or her child. SCOTUS agreed that parents have that right, but disagreed with the State court's decision regarding the unconstitutionality of the law. The Supreme Court also said that the presumption should be that the parent was making decisions in the best interest of their child. Before the lower court's decision, the Washington law granted visitation rights unless the parent proved such visits would negatively impact the child. SCOTUS felt this requirement infringed on parents' fundamental decision-making rights.

This decision did not definitively decide the question of grandparent visitation, as courts continue to hear these types of cases. Many states have, however, altered their grandparent visitation laws for consistency with the SCOTUS ruling in Troxel v. Granville, meaning that presumption should be in the parent's favor, that he or she is acting in the best interest of the child.

How to Proceed with a Grandparent Visitation Rights Case

As many states require this step anyway, begin your visitation petition by requesting a mediation session with the child's parents. In mediation, a neutral third party works with both parent(s) and grandparent(s) to arrive at a legal agreement both parties accept. If mediation is not successful, schedule a free consultation with an attorney experienced in family law. He or she will advise you of the statute in your particular state, and what to expect from your suit. For example, you will likely have to testify about a wide variety of personal questions. The court will ask about your relationship with your grandchild, as well as your relationship with his or her parents. Additionally, you'll be asked about previous custody arrangements, how often you see your grandchild and when was the last time. You will also be asked to provide numerous personal details, including your legal history and medical background. These questions are similar to those asked of a noncustodial parent requesting visitation rights; they represent the court's attempt to always act in the best interests of the child.