What rights do I have to see my grandchildren after a divorce?

Grandparent Visitation 

The birth of a child is an incredibly exciting time for a family, especially for grandparents. But what happens when family relationships are strained and grandparents do not get to see the bundle of joy as frequently as they would like, or at all? Many people wonder what a grandparent can do to be a part of a grandchild’s life.

The answer is, some, but perhaps not as much as an excited grandparent might like. A parent has a right to the custody, care, and nurture of their child provided by the Fourteenth Amendment to the United States Constitution. That means a parent’s determination of how to care for their child is difficult for a third party to overcome. Utah law goes further by providing that there is a presumption that a parent’s decision on child visitation is in the best interest of the child, even when party seeking visitation is a grandparent. Utah Code § 30-5-2(2). However, the presumption is rebuttable, meaning a third party with standing can overcome it in some circumstances with court intervention.

When the court is asked to find that the parents are not acting in the best interest of their child by preventing grandparent visitation, they look to several factors in their decision.

Is the grandparent a fit and proper person to have visitation with the child?

A grandparent with a past including violence, crime, drug use, mental instabilities, etc., may defeat any attempt to overcome the presumption and the court may determine conclusively that the parents are acting in the best interest of the child by denying the grandparent visitation.

Has visitation with the child been denied or unreasonably limited?

There have been many studies conducted showing a grandparent has a positive impact on the life of their grandchild, including, but not limited to, a lowered risk of the child later developing psychopathology, and increased respect for older citizens, and the children themselves being more likely to be better grandparents. (Down & Walz, 1981 and Leahy-Johnson and Barer, 1987).  Given the positive impact a grandparent has on a child’s life, the court will look at the reason behind the exclusion and determine its reasonableness.  Keep in mind, this factor will not, by itself overcome the presumption in favor of the parent’s decision.

Is the Parent Unfit or Incompetent?

Just as a questionable history can prevent a grandparent from overcoming the presumption, the same history in the parent’s life can aid the grandparent in being awarded visitation. If a parent has severe mental problems, multiple supported allegations of child abuse, a criminal history involving drug use or violence (especially toward children),or other things that would suggest a parent is unfit or incompetent,  a grandparent has an increased chance in being awarded visitation over a parent’s protest.

Has the grandparent acted as the child’s custodian or caregiver, or otherwise had a substantial relationship with the child, and the loss or cessation of that relationship is likely to cause harm to the grandchild?

If the grandparent is denied visitation after having contact with the child, the court will determine whether the contact was sufficient enough that removing the same from the child’s life could cause harm to the child. This factor is a particularly powerful arrow in the quiver of a grandparent seeking visitation because often visitation is denied after previously being an important part of the child’s life. This acts as the bedrock upon which grandparent’s case for visitation is founded.

Did the parent of the child die or become a noncustodial parent through divorce or legal separation, or have they been missing for an extended period of time?

When a parent of a child is missing, dies or has their time with the child limited through divorce, the grandparent of the child is often left out of the child’s life merely through a change in circumstances or new restrictions on the child’s time; however, that does not mean the grandparent has a reduced interest in the child’s development. As discussed above, studies have proven a child is well served by having a strong relationship with their family, this includes extended family and that interest is not diminished by death, divorce, or disappearance of the child’s parent.

Is visitation in the best interest of the child?

Whenever a court is asked to reach a decision involving a child, their standard of measure is the best interest of the child. In determining the best interests, the court will review many factors, some of which are outlined in statute. See Utah Code § 30-3-10.2. Here, among other things, the court will review all the factors surrounding the relationship of the grandparent and child. The court will consider facts relevant in making their determination on whether visitation is best for the child.

While rebutting the presumption that a parent is acting in the best interest of their child is not simple, and not always successful, it can be done if a grandparent can establish sufficient proof on several of the above factors showing their involvement in their grandchild’s life benefits the child as much as they are hoping it benefits them. If you are a grandparent trying to reestablish a relationship with your grandchildren, or a parent trying to protect your child, a family law attorney may be able to help.

This article was written by Attorney Christoper Young of Hepworth & Associates and Associates.  Mr. Young is a Utah family law attorney.

 

 

Michael Hepworth

Michael Hepworth

Managing Attorney at Hepworth & Associates
Michael is the Managing Attorney of Hepworth & Associates, LLC.
Michael Hepworth

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