Grandparent Rights

There is nothing more precious than a grandchild. Ask any grandparent and they will tell you that their grandchildren are lovely and smart and absolutely perfect.  When my children were young I had a reputation for being just goofy in love with my kids.  But until I had grandchildren I had no idea just how full my heart could be.

Unfortunately, there are times when we disapprove of how our grandchildren are being cared for by their parents.  Perhaps the relationship between us and the parents becomes strained, and they may decide to deny us access to these precious ones.  What can we do about it?

Grandparent Rights

For purposes of this article, we are talking about having access to the grandchild—the right to visit the grandchild, have the grandchild come visit the grandparent, spend the night, etc. Trying to gain custody of your grandchild is a different topic.

Gaining access to a grandchild against the wishes of her parents is often an uphill battle. Back in 2000, the Supreme Court of the United States said that a parent has a fundamental right to decide who has access to his or her child.  In order to see your grandchild against the wishes of a parent, you have to show the following:

  1. First, you have to be the parent of the grandchild’s parent. A step-grandparent is going to be out of luck.
  2. Your child has to still be the legal parent of your grandchild—she cannot have had her rights terminated. If she is no longer the child’s parent legally, you are no longer the child’s grandparent.
  3. You have to show that, by not seeing you and spending time with you, your grandchild will be (not might be, but will be) harmed, either physically or emotionally.  Showing that the child would be “sad” if she doesn’t get to spend time with the grandparents is probably not enough. You have to show substantial harm.
  4. Your child must be “unavailable.” That means that your child, the parent of your grandchild,  has been declared incompetent, is dead, or does not have any actual or court-ordered periods of possession. If the parent has court-ordered periods of possession but is not exercising them, the grandparent can probably not step in and ask to exercise the parent’s period of possession.
  5. Finally, you have to show that the parent intends to (or has already) completely deny you any access to your grandchild. Restricting access is not enough—it must be completely denied.  For example, if the parent says, “You can see Susie when you come for Thanksgiving Dinner but she can’t spend the night with you,” that is a restriction—not a denial.

If you are considering filing suit to gain visitation rights with your grandchildren, please pause and consider.  Chances are that your relationship with your son or daughter is already strained.  Taking them to court will not do anything to improve that relationship.  You need to evaluate whether the potential outcome is worth the risk. If you find yourself in this difficult and painful position, give us a call at 281-446-1437.  We’ll help you weigh your options and see if we can resolve the situation.

THIS ARTICLE IS MEANT TO PROVIDE GENERAL INFORMATION ONLY AND SHOULD NOT BE CONSIDERED LEGAL ADVICE.  EACH CASE IS UNIQUE.

THIS ARTICLE DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP