Grandparent Visitation Rights

Informative eReference
Parental Rights & the Juvenile Justice System
 

by Loma Davies Silcott

Gone are the days when your children and grandchildren lived down the block or around the corner and you could visit them whenever you wanted. In our mobile society, many children live half way across the country and grandparents are lucky to see their grandchildren once or twice a year. Today, even that seldom is better than what an increasing number of grandparents are facing: a court fight for the right to see their grandchildren.
Although no one knows how many such visitation cases there are in the United States today, experts agree that the numbers are rising. Richard Victor, an attorney in Michigan, has made a specialty of such cases. When he began in 1979, he had only half a dozen clients. In the years since then, his firm has represented well over 600. He also founded and is executive director of the nonprofit, nationwide group, Grandparents Rights Organization (GRO), based in Birmingham, Michigan.
Problems usually occur when there has been a nasty divorce and your child's ex-spouse has custody of the children. For whatever reason, he or she decides to deny you access to your grandchildren. Fortunately, many state laws now provide reasonable visitation rights for maternal and paternal grandparents. However, since legislation varies widely from state to state, even if you win your case in one state, you will have to start all over again if your grandchildren move to another state.
If possible, have grandparent visitation rights included in the divorce decree. If you are having a problem seeing your grandchildren, and visitation rights were not included in the decree, you can apply to the District Court for the right to visit with an unmarried minor child. However, the courts must consider whether grandparents' visitation is in the best interest of the child.
Because so many grandparents are facing the same problem, local and national organizations are working to obtain visitation rights. Dr. Arthur Kornhaber, a Lake Placid, New York, psychiatrist and president of the Foundation for Grandparenting, states: "Many times, grandparents have been legislated out of existence because of temporary problems." He recommends that even though there will be emotional and financial costs, grandparents should go to court if that is the only way to resolve the conflict. However, most, including the American Bar Association, believe court should be the last resort. They recommend going to professional, third-party mediators first.
Obviously, some kind of uniform state law is urgently needed. Rep. Thomas Downey chaired a grandparents' rights hearing in October 1991, and reported a "positive sign" --the National Conference of Commissioners on Uniform State Laws intends to investigate the problem.
"Find alternative ways to continue the relationship," advises Richard Victor. "Write letters, call-let the kids know you're part of their support network. And never, never make them feel they have an emotional conflict of interest. Even if you have to bite your tongue when you say something nice about the children's parent, do it‹because you're doing it for the good of the child."

GENERAL GUIDELINES
Divorcing parents can prevent later intergenerational conflict by including in their separation agreement a provision stating specifically that both sets of grandparents will have visitation rights. But for grandparents who have no such provision in their favor, here are some general guidelines:

• Don't be too aggressive. If the custodial parent remarries, give him or her plenty of time to make the new marriage work. Such family transitions are usually difficult for young children, who may be torn by loyalty to the divorced or deceased parent.
• Don't run out and start a lawsuit. First, open a line of communication with the parent or parents. You might even use a neutral third-party mediator. Try to ascertain what the difficulty is. "More often than not, visitation is not being denied because the parent thinks contact with the grandparents will be harmful for the children," says Richard Victor. "Instead, the parent fears that the grandparent will talk to the children about him or her in an adverse way." He suggests discussing with the parent some ground rules for visitation. Then, whatever rules are agreed upon, follow them.
• When there is no other recourse, call your local bar association for referral to a family-law attorney, preferably one with experience in third-party (other than parental) visitation rights. When you meet with the attorney, be prepared with documentary evidence and lists of witnesses to support your contention that it is in the "best interests of the children"-the legal standard in most states-for them to see you. Evidence that a consistent, caring relationship existed between you in the past is important.
• If there is animosity between you and the children's parents, do everything you can to keep the youngsters from getting involved in it.
• Remember that grandparent visitation rights are not intended or designed to supersede parental authority. Grandparents should step in only when there is a threat to the children's safety. If there is evidence that the children are being physically or emotionally abused, contact the department of social services for the protection of minor children in the state where your children live.
• Be aware, too, that the law applying to your visitation rights is the law in the state where the grandchildren live.

With some hard work and perseverance, most of you will soon be a part of your grandchildren's lives-something both they and you need.

About the author: Loma Davies Silcott of Rapid City, South Dakota, has written more than 600 articles. Her book, The Nuts & Bolts Writer's Manual, is now in its second printing. She has recently compiled 42 of her articles for seniors into a book entitled Senior Sense.