All 50 states have statutes granting grandparents at least limited visitation rights with their grandchildren. Usually, grandparent visitation issues arise when a grandparent’s child divorces and the ex-spouse has primary custody of the grandchildren, the grandparent’s child dies or has his or her rights terminated. The primary justification for grandparent visitation is that it is often in the child’s best interests to have a close relationship with his or her grandparents.

While some states mandate visitation under only certain circumstances (death of a parent, divorce, incarceration of a parent), the majority of states allow courts to consider granting visitation rights to grandparents without the necessity of parental death or divorce.

States Using the “Best Interest of the Child” Test

Statutes that allow liberal grandparent visitation are based upon the best interests of the child test. In these states, a parent death or divorce is not a prerequisite for a grandparent to seek visitation. All that the grandparent must prove to the court is that it is in the best interests of the child to have visitation.

Restrictive Grandparent Visitation Statutes

Because parents have a fundamental right to make decisions about the care, custody and management of their children, some states’ laws create a presumption that a parent’s decision regarding grandparent visitation is correct. A grandparent must overcome this presumption by proving that he or she has more than a biological connection with the child and that the child will suffer physical, emotional, or mental harm without visitation. This can be a difficult burden of proof to meet.

Factors a court may use in determining whether to grant grandparent visitation include:

• The child’s preference if the child is old enough to state a preference
• The physical and mental health of the grandparent seeking visitation
• The child’s physical and mental health
• The amount of visitation sought and its impact on the family
• The quality and length of the grandparent / grandchild relationship
• Whether the grandparent has had frequent visitation with the grandchild in the previous 12 months
• Whether the child has resided for six consecutive months with the grandparent
• Any other factor that would show a denial of visitation having an adverse impact upon the child’s mental, physical or emotional health

The court applies these factors on a case-by-case basis in determining whether grandparent visitation is appropriate.

Alternatives to Grandparent Visitation Orders

A grandparent that is physically caring for a grandchild may seek to maintain his or her relationship with the child by petitioning for legal guardianship or custody. Without a formal court order, a grandparent may find it difficult to have visitation or maintain a relationship with a grandchild if the parent (who is not ready to parent) has legal custody.
Conclusion
A grandparent who seeks visitation rights will first have to determine the standard applied in the state in which visitation is sought. If the state is has liberal visitation requirements, then the grandparent need only prove that visitation is in the best interest of the grandchild. However, if the state has restrictive grandparent visitation rights, the grandparent will have to overcome the presumption that a parent has a right to limit grandparent visitation.