How Do Grandparent Visitation Rights Work in a Divorce?

By:
Michael Tierney
Updated
August 10, 2022

Divorce is a contentious process that can have you arguing about the small details in your life that were once a simple matter. The sad reality of divorce is that your relationship is ending, and the small things you have become accustomed to are now talking points in divorce proceedings. The negotiations involved in divorce allow you to determine custody rights, alimony agreements, and child visitation permissions, among other things.

These details are critical to maintaining an amicable relationship post-divorce, especially since visitation disagreements are so common between divorcees. However, while it is common for visitation arrangements to be a point of contention between spouses during the divorce proceedings, there is a detail very few consider: how divorce negotiations affect extended family members such as grandparents.

When a marriage ends, it is well documented that the parents of any children born in the marriage negotiate custody and visitation rights. The visitation rights afforded to extended family members like grandparents do not get much attention. Despite not having a direct role in the upbringing of the children, grandparents are not likely to be willing to surrender their rights to interact with their grandchildren.

If your child is divorcing their spouse and your ability to visit your grandchild is uncertain, it can be enough to make you worry. Fortunately, there is plenty of information available that can help you retain your relationship with your grandchild.

Let's get started!

What is Visitation?

"Visitation" is a term often associated with divorce but is occasionally misunderstood by those who have never dealt with the process. Post-divorce parental rights have become confusing due to the concept being used as a point of conflict on television or in films. While these programs might illustrate visitation and custody as a clear-cut situation, the reality is that visitation is extremely complicated.

Post Divorce Child Visitation

The primary complication stems from the fact that it falls to the parents to negotiate an equitable visitation schedule. This usually results in significant disagreements that legal professionals or judges must mediate.

Solution Visitation is a court-approved plan on how parents will split their time between their children. Visitation is typically divided in favor of the custodial parent who attends to the child full-time. While some divorces result in shared custody, with the child spending time living with each parent in turns, some only allow for visitation. This visitation is granted because the courts believe in allowing a child to maintain meaningful connections with both parents while upholding their child's right to spend time with them.

This usually results in the non-custodial parent being granted one of three variants of visitation:

  • Reasonable: Reasonable visitation is one of the most contentious forms available. It allows the parents to negotiate the visitation schedule independently of the court system unless a major conflict arises in the talks.
  • Supervised: Supervised visitation is only issued by a judge when it is determined that spending time alone with the non-custodial parent would be counter to the child's best interests. Usually, this is because the non-custodial parent has a history of unreliability or substance abuse.
  • Unsupervised: The most common and most prized type of visitation is unsupervised visitation. This option enables the non-custodial parent to spend time with their child without supervision and extends to overnight visits.

While visitation rights are traditionally determined for the parents' sake, the arrangement impacts the extended family. After all, if the non-custodial parent only gets limited visitation, it stands to reason that the grandparents on that side of the family get even less visitation. This raises the question of whether a grandparent's right to see their grandchild is factored into visitation agreements. Fortunately, the answer is straightforward.

Do Grandparents Get Visitation?

In most cases, the grandparents of a child are not the guardians responsible for a child's upbringing. This often means they might seem left out when custody and visitation agreements are negotiated during a divorce.

Solution Fortunately, this is a misconception, as grandparents are entitled to certain rights when it comes to seeing and interacting with their grandchildren. Their rights are not as extensive as the parents', but they are significant enough to ensure that grandparents are permitted visitation independent of the parents.

Like most laws, the details vary depending on the state, and grandparental visitation rights might not translate across state borders. However, all 50 states recognize the rights of grandparents to visit their grandchildren despite the divorce.

Unfortunately, grandparental visitation is not guaranteed in every state and is often reserved for extreme cases where the parents can no longer care for the child. For example, if both parents are deceased rather than divorced, a grandparent would be able to visit or take custody of the child. Other states are far more lenient when it comes to grandparent visitation.

Grandparent Visitation

Currently, 20 states maintain a restrictive model for grandparent visitation. In these restrictive states, the parents can legally deny visitation to the grandparents and maintain complete custody of the child. This restrictive practice was addressed in 2000 when the issue was presented to the United States Supreme Court. The case upheld the laws that allowed parents to have the final say in whether a grandparent could visit the child or not.

That said, the restrictive practices maintain that a grandparent can only be prohibited from visiting their grandchild if their visits would go against the child's best interests. A grandparent must usually request visitation from the parents to be considered during the divorce proceedings. Unfortunately, a grandparent will seldom be granted the same visitation rights enjoyed by the non-custodial parent. Sometimes it becomes necessary for you to take matters into your own hands to ensure you will be able to maintain meaningful contact with your grandchild after the divorce is finalized.

What Can You Do to Grant Your Grandparents Visitation?

You might worry that you will be unable to interact with your grandchild, especially if you live in a restrictive state. Fortunately, you can exercise your legal rights to try and improve your chances of securing a favorable visitation plan. Granted, you will not be able to force yourself into the visitation arrangement if the child's parents refuse to accommodate you in the schedule. However, you can take steps to prevent being cut from your grandchild's life entirely. You need to consider that the parents want to maximize their time with their child and sympathize with that sentiment.

While you might be tempted to try and take the visitation situation to court, you will find this a poor first choice.

Solution Your best bet is to talk to the parents and try and appeal to them for the ability to see your grandchild.

While this might seem like trite advice, it is one of the most effective tactics since visitation is an emotional discussion. The child's parents already need to share custody and visitation with their ex-spouse, so they will initially be averse to sharing what time they have with anyone else. Appealing to them about your desire to see your grandchild can make them a little more comfortable with the idea.

Grandparents Not Granted Visitation

In some cases, hiring a mediator can enhance your chances of convincing them to allow visitation. While you should probably broach the subject with the parents before setting a mediation appointment to avoid blindsiding them, a mediator can help resolve the conflict. Mediators can tailor legally binding agreements between you and the other party that can help revitalize your visitation rights. While a mediation service can help you reach common ground with your grandchild's parents, they will not always be receptive to your pleas or the mediator.

If the parent refuses to hear you out and will not budge on visitation, you can file a petition with the court. In most states, a court will refuse to hear your petition unless you have attempted mediation first. Filing a petition can be your last resort if you have exhausted all other avenues for convincing your grandchild's parents to allow visitation. At this point, the court must decide if visitation is within the child's best interests and if you deserve visitation rights. If you present a petition, you must present a valid reason for the request.

One of the most common and well-received reasons behind a visitation petition is preserving your grandchild's relationship with you. So long as your argument falls in line with the precedent set by Troxel v. Granville, you should not have too much to worry about when it comes to securing visitation. If your reason for the petition is not valid or you prove to be a poor influence on your grandchild, your petition will be denied. Though we doubt this is the case.

With all this in mind, you are likely concerned about what is considered when the court determines what visitation is in the child's best interest. There are a few criteria that are often considered by the court when this question arises that you should remember.

How Do Courts Determine the Child's Best Interests?

The "best interests" of the child is a phrase designed to ensure all rulings involving a child focus on keeping the child in a safe and healthy environment. This concept is used in legal proceedings involving custody, visitation, adoption, and any other legal case where a child's life is prone to sudden change. While the child's best interests are subject to several variables specific to their life, a few generic details are put forward when the decision is made.

These include:

  • The child's age.
  • The child's sex.
  • The child's mental health.
  • The child's physical health.
  • The parent's age.
  • The parent's lifestyle.
  • The parent's mental health.
  • The parent's physical health.

These details are important to determining custody over visitation since the courts want the child to be raised by someone who can attend to the child's needs. If the child has specific health conditions or needs care only a same-sex parent can provide, these details factor into the decision.

Solution Similarly, the parent must be in the proper physical shape and have a lifestyle conducive to a child's healthy development.

When visitation is being determined, a less tangible concept is considered.

Child Holding Family Cutout

The child's emotional connection to the parent or grandparent is a major factor in visitation rulings. If the child has a strong connection with you and the parents are refusing visitation, the courts will consider the child's desire to see you. In this case, they will be more likely to approve a visitation request in a way that does not undermine the parents' right to control the visitation schedule. If the visitation request you submit falls within the child's best interests per the court's discretion, you should find the petition successful.

All this information should keep you apprised of how a grandparent's rights are upheld regarding visitation. While there is always more to learn, you should be able to file a petition successfully should the parents refuse mediation.

Learn the Law

Divorce is often viewed as an issue that only affects the couple going through the separation. Many do not realize until well after the proceedings that divorce has a ripple effect beyond the immediate family. Unfortunately, this ripple effect even applies to grandparents in a way that can impact your ability to have a relationship with your grandchild when the parents do not factor you into the visitation schedule.

In most cases, you will be able to talk things through with the parents to ensure visitation rights. If for whatever reason, the parents are opposed to letting you have time with your grandchild, legal options do exist.

Grandparents Visiting Grandchild

However, you should remember that divorce is an emotionally turbulent situation for anyone to find themselves in. The odds are high that your grandchild's parents are reeling from the strain brought about by the divorce. Keeping their emotional state in mind is important to ensure that your relationship with them (and with your grandshild) is a healthy one.

You also have a better chance of maintaining a healthy relationship with your grandchild by learning about what they are going through. Once upon a time, information on divorce was difficult to access, but now it is easier than ever. Learning more about divorce can help you relate to your grandchild's parents and connect with them to remain a healthy presence in both their lives.

Written By:
Michael Tierney
Michael is a legal writer and graduate of WSU. Prior to becoming a legal writer, he had 6 years of experience as a legal assistant and office manager for a family law attorney. He's written about numerous legal subjects from helping spouses who are stuck in toxic situations to the intricacies of custody battles. In his spare time, he enjoys hiking, rock climbing, and building custom keyboards.

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