The law does not give grandparents any inherent right to see their grandchildren. The reason behind this is that it would interfere with parental rights, which the law tends to strongly support. Judges, however, can make an exception if the grandparents can prove their case.
The law gives parents the priority when it comes to making decisions for their children, but grandparents do have the right to petition the court, which is a formal request asking the judge to hear a case and make a decision.
Some specific things need to be proven in order for a grandparent to win court-ordered visitation. First, the grandparent needs to prove that visitation is being wrongfully withheld. This means that the parents are wrongfully withholding visitation and that the withholding is harmful to the child’s mental, physical or emotional health. The fact that a child may not be allowed to get to know their grandparent is not enough. It’s not an easy thing to prove, and an expert – such as a mental health professional – may be necessary to testify about any harm that it could cause the child.
Second, the grandparent has to prove to the court that either (1) the child’s unrelated parent is deceased, (2) the parents are divorced and at least one parent does not object, (3) a parent is incarcerated or (4) a parent is incompetent.
The judge will hear the arguments as to why grandparent visitation should be ordered, including the nature of any existing relationship between the child and grandparent, the motives of each party and whether each side is acting in good faith (and not out of revenge). The physical and mental health of both the grandparents and the child may be considered as well.
These cases aren’t always easy, but when the best interests of the child would be well served by grandparent visitation, it can be an important thing to fight for.
Written by Michael Helfand