Grandparents’ Rights: Visitation and Access through the Courts

By Ursula Furi-Perry, Esq.

For some grandparents, a special relationship with their grandkids turns into full-time care and guardianship—yet for grandparents on the other end of the spectrum, it can be a challenge to even see their grandkids. Whether you’re seeking visitation and access to your grandchildren or serving as their legal guardian, there are several legal issues involved.

An Overview of Visitation Rights

In the landmark 2000 case of Troxel v. Granville, “the U.S. Supreme Court struck down a grandparents’ visitation rights statute from Washington, but that statute was incredibly broad,” explains Professor Taylor Flynn, who teaches family law at Western New England College School of Law in Springfield. “In most states, the statutes were drawn more narrowly,” she says.

For example, the Massachusetts statute allows for the court to grant visitation rights to grandparents, as long as the grandparents can show that visitation would be in the child’s best interests.

One of the greatest challenges dealing with grandparents’ visitation rights is simply overcoming the emotional issues that tend to go on in these cases, says Richard Victor, a family law attorney who founded the national non-profit Grandparents Rights Organization (GRO.) Most cases are dealing with dysfunction, whether it’s divorce, death of a parent, or inability of a parent to care, which can make for a break-down in communication among the family, Victor says.

A particularly challenging situation is where grandparents seek visitation when both parents object, says Flynn. “It’s usually the most difficult scenario because parents in general have a constitutional right to make a decision about who their children will visit,” Flynn explains. Another unique challenge arises where grandparents have been shut out of their grandkids’ lives in the past—under the Massachusetts statute, grandparents must show that it’s in the best interest of the child to grant visitation, which can be tough to do with no or little previous contact existed between the child and the grandparents.

“Most parents don’t realize that they’re not related to the same people as the children,” says Victor. While a parent who’s undergoing a divorce may not want to maintain contact with his or her in-laws, the parent must recognize that the children are related by blood to relatives on both sides. “We have to recognize the concept of family and how you define family,” Victor says.

Grandparents also have to realize that they can’t simply attempt to meddle in parents’ decisions just because they disagree with the way their grandkids are being raised. “You have to understand that you may have had your chance to raise your child,” Victor says. Naturally, if a child is being harmed, neglected, or placed in danger, grandparents should call the authorities, Victor says. But Victor adds that he receives many calls from grandparents who simply disapprove of the parental decisions their own kids are making when it comes to their grandkids—and often, the parents are deliberately trying to cut contact with the grandparents because they don’t want to deal with their meddling.

In some cases, Victor says visitation can be worked out informally—in one instance where the grandparent was giving the child fast food, which the parent disapproved of, Victor was able to work out a compromise in his office to benefit the whole family. Ultimately, “the love of and for the child is what [grandparents and parents] have in common,” Victor says.

But visitation rights aren’t the only legal issue that can affect grandparents: for some grandparents, their relationship with grandkids can turn into full-time care. When grandparents become the primary guardians of their grandkids, they effectively act as the child’s parents, Flynn says. That means they get to make everyday decisions, including legal decisions on the child’s behalf.

Again, a potential challenge can come up if one of the parents attempts to terminate the grandparents’ guardianship and regain custody of the children, Flynn says; she explains that in general, such legal guardianship arrangements are understood to be temporary. In that situation, a custody battle – much like any custody battle between two parents – may ensue, as even though the grandparents have been taking care of the children, the parents have some constitutional rights to raise them, Flynn notes.

Another issue that can routinely come up deals with leaving real estate or personal property to grandchildren, whether in a bequest or a trust that’s set up with the grandkids as beneficiaries—for example, on a life insurance policy or retirement account. If possible, hire an attorney to draft your will, structure any trusts, and handle other estate planning matters, Flynn says.

What to Do if You’re Seeking Visitation:

For grandparents who have an issue with visitation rights, access to grandkids, or any other legal issue dealing with their relationship with their grandchildren, attempting to work things out without going to court may be the best bet. Read up on relevant laws, Victor says, and understand the rights and responsibilities of grandparents.

Both Victor and Flynn recommend getting an attorney if you can afford it. Victor stresses the importance of hiring someone with expertise in this – rather narrow and specialized – area of the law; he adds that GRO can provide referrals to attorneys in your area. Flynn also stresses that where grandparents are denied contact with their grandkids, they should ask the court for help as soon as possible, before lack of contact makes the grandparents’ case even tougher to prove.

“It’s important for grandparents to know that they can use the courts to seek out access to their grandchildren,” says Flynn, “but it’s also important to know that it can be a tough road for them.” To be better prepared, seek out resources such as GRO at http://www.grandparentsrights.org/ or the Massachusetts Trial Court Law Libraries’ information on Massachusetts laws about grandparents’ visitation rights at http://www.lawlib.state.ma.us/grandparent.html.

Ursula Furi-Perry, JD is a nationally published writer, college professor, and mother of two from Haverhill. Her book “50 Legal Careers for Non-Attorneys” will be published by American Bar Association Publishing in 2008. She can be reached at www.furiperry.com.