Family law rights may extend beyond the traditional, nuclear family or household.
The grandparent of a minor child of a party to a marital action may be granted visitation by the Court. Though the law does not require that the grandparent who wants visitation rights be joined as a party to the action, it is still advisable he or she do so. However, in such a case, the grandparent’s attorney must advise the grandparent that he or she could be found to be responsible for the attorney fees and costs to “maintain or defend the action on the issues related to that party.”
A grandparent may petition for visitation with a grandchild in the following circumstances:
- A parent of the grandchild has passed away.
- A family law issue is pending and child custody is an issue.
- The parents of the grandchild are not married to each other.
- The parents of the grandchild are married but do not live together indefinitely and meet other statutory criteria.
A grandparent may also petition the Court for visitation when their grandchild, whose biological parent has passed away, has been adopted by a stepparent or grandparent.
Courts have held that if a fit parent decides to deny a grandparent visitation, that grandparent must overcome a presumption that that parent’s denying visitation to the grandparent is in the best interest of the grandchild. This can be a steep hurdle to climb since it has been held that a fit parent receives deference in decisions about visitation.
Additionally, a grandparent may attain visitation if the Court finds that there is a preexisting bond between the grandparent and grandchild, to the effect that visitation is in the grandchild’s best interest AND upon the Court balancing the grandchild’s interest in visitation against his or her parent(s)’s right to parental authority. However, for the grandparent to attain visitation rights in this case, the parents must either be unmarried to each other OR one of the following applies:
- The parents are living apart on either a permanent or indefinite basis.
- One of the parents has been absent for over a month while the other parent does not know his/her whereabouts.
- One parent joins in the grandparent’s petition for visitation.
- The grandchild resides with neither parent.
- A stepparent has adopted the grandchild.
- One parent is either incarcerated or involuntarily institutionalized.
The Court has also found that in these situations, if one parent agrees that the Grandparent should get visitation, then the parent who opposes said visitation does not get the presumption that his/her denial is in the child’s best interest.
Patrick Baghdaserians has handled several cases relating to the rights of grandparents.
Under the law, grandparents already start their cases at an uphill battle. This is why having an experienced Family Law attorney who has dealt with these issues specifically, and from other perspectives of family law disputes, is crucial. An experienced Family Law attorney who has already overcome such uphill battles is essential in overcoming the legal obstacles that are placed before grandparents who simply want to make sure they are a part of their grandchildren’s lives.