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In the last few years, the issue of whether or not grandparents have a legal right to visitation with their grandchildren has become a fairly popular topic. 40 years ago, there was no law providing grandparents with visitation rights in family law. Today, laws in place could potentially allow a court order to be entered, allowing grandparents’ visitation, even against the parents’ wishes. In the past, the issue of child visitation was strictly between the parents. Still, grandparents have been afforded the right to request visitation in a court of law. Read on to learn more about grandparents' visitation rights and learn how a family law attorney could help your particular situation.  

grandmother baking with her young grandson

Do Grandparents Have Visitation Rights?


As of the writing of this article, all 50 states have some sort of law in place relating to grandparent visitation rights. However, that does not mean that grandparents automatically have visitation rights. While that sounds a little convoluted, it is essential to understand that when it comes down to visitation, most courts will employ a standard of what is in the best interests of the child or children. In other words, if the court is evaluating a petition for visitation filed by a grandparent, the court will ultimately have to decide if granting that visitation right is good for the child, not if it is suitable for the grandparents or any other parties involved. Another factor to consider is that the state knows that, pursuant to the Constitution, a parent has the right to decide regarding their child’s care and upbringing, including who they allow being around their child. This Constitutional right means that if a parent does not want their child to have contact with a grandparent, a court granting that right may have their decision overturned in a subsequent decision by a higher court.  For more specifics on Illinois grandparent's visitation rights read our article, Illinois Grandparent Visitation Rights Explained.


Can Grandparents Get Visitation?


As mentioned above, grandparents can get visitation if the court grants them visitation rights. Generally speaking, states have two types of general laws regarding grandparent visitation. These laws are classified as permissive or restrictive visitation laws.  


Permissive Visitation Law


One kind of law is the permissive visitation law, which can allow grandparents to request and be granted visitation if it is a matter of the parents just not wanting the grandparents to have time with the child or children. What this means is if there is a situation where, generally speaking, the parents are still alive and married but have chosen to not allow the grandparents to see the child or children anymore, this is a scenario where a permissive visitation law would come into play. The grandparents can petition the court for the right to visit. Actually, under the permissive visitation law, most third parties can generally petition the court for visitation rights to the child. After a petition is received, the court will evaluate the request in light of what is in the child’s best interests.  


It is important to note that just because these laws grant a party the right to petition for visitation with the child or children, it does not mean that they will receive an order allowing them to visit. These types of cases are not only evaluated in the best interests of the child's light but also in consideration of individual facts and circumstances. If the parents have decided not to allow the grandparents to visit for a specific reason, something other than just alienation, the court will look at those facts too. An example might be that one or both of the grandparents have, in the past, actively disregarded the rules that the parents have put into place for the health and safety of their child or children. If there is evidence that allowing the grandparents time with the child will be detrimental to the child, they will not receive visitation. Ultimately, the courts will consider a fit parent’s decision on whether or not to grant visitation rights to a grandparent or an interested third party.  

Two children visiting their grandfather and hugging

Restrictive Visitation Law


Restrictive visitation laws are brought into play when the parents are divorced or when one or both of the parents are deceased. Currently, 20 states have these types of laws, where only a grandparent can petition for visitation. Additionally, the parents must be divorcing, divorced, or deceased. Under a restrictive visitation law, the court will again consider many of the same factors as it would under a permissive visitation law, in other words, what is in the child’s best interest. Again, if one or both of the parents, regardless of marital status, can demonstrate a reasonable basis for not allowing the grandparents to visit, then it is unlikely the court will overturn the parent’s decision. On the other hand, if the issue is actually between the parent or parents and their parents, it might be a simple case of estrangement. In that instance, a court might be more willing to grant visitation.  


Additional Factors Affecting Grandparents' Visitation Rights


The court will also look at other factors when making a decision on whether or not to allow grandparents visitation rights. For instance, did the grandparents regularly see the grandchild or children before the parents stopped it? For example, if the child was accustomed to going to their grandparent’s house every day after school to visit and then, post-divorce, that suddenly stopped and there was no contact, the court might be more likely to grant visitation. The issue here is that the grandparents were a substantial part of the child’s young life, and to have it yanked away without good reason would be detrimental to the child and not in the child’s best interests.  


On the other hand, if the child and grandparents were not incredibly close or only saw one another once a year, the court would be less likely to order the parents to allow more visitation than that. Furthermore, if the grandparents are lobbying the court to allow them to take the child for extended periods of time or to allow them to take the child out of the country against the parent’s wishes, the likelihood of getting that request granted is very low. If the child or children have reached a certain age, the court may even take their preferences into consideration, either for or against seeing their grandparents.  For more specifics on Iowa visitation rights read our article, What are a Grandparents’ Visitation Rights in Iowa?

Two little girls hugging their grandmother during visitation

Alternative Methods


Whatever the reason is that the parent or parents will not allow grandparents to visit their grandchildren, and there is always at least one, there are methods you can try before hiring a lawyer and filing a petition with the court. Many grandparents will attempt to invite the parent or parents to attend mediation in order to try and work things out peacefully. Mediation is always an excellent first step in these types of family law cases, where it could always just be a misunderstanding between the parties. On the other hand, if the parent or parents are entirely shut down by the idea of attending mediation to allow you to see your grandchildren, you might not reach a resolution. Still, you will be able to tell the court that you tried before filing anything. The situation is very emotional and delicate. You will need to think things through carefully before approaching the parent or parents. If you threaten to take the parents into court over their child, you can undoubtedly expect an adverse reaction; mediation is a gentler way to split the difference and have a conversation.  


Ultimately in order to reach the goal of seeing your grandchildren again, you should consult with an experienced family law attorney in your state. An attorney will be able to evaluate your individual facts and circumstances and advise you on whether or not you would even have a chance of succeeding in legal action to regain visitation with your grandchild or children. You want to be informed before you say or do anything that could make the situation worse with your family. A solid understanding of your rights is essential before you make any plans. If you are a grandparent trying to regain the right to see your grandchildren and need assistance, please feel free to call O’Flaherty Law. We have experienced family law attorneys in Illinois, Iowa, Indiana, and Wisconsin who would be happy to help you.

December 2, 2022
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