Grandparent Rights: Do You Have Legal Rights to Your Grandkids?
March 25, 2021
Grandparents can be blessings, stepping in to help care for children when parents need them most. But in the event of a messy situation where a family becomes fragmented, grandparent rights to visitation and custody are rarely guaranteed—in most cases, state courts tend to err on the side of parents.
So do grandparents have rights? They usually do have some legal standing, but seeking grandparent rights can be an uphill battle, with some states providing more help legally than others to grandparents trying to keep up a good relationship with their grandkids. Read on to learn more about what legal rights grandparents may have if you’re looking to gain visitation or custody rights in the United States.
The first thing to know about grandparent rights in the US is that they’re not governed by the federal government. Laws vary considerably by state, and the laws that pertain to your situation will be the ones in the state where the children live, says Natanya Briendel, Esq., staff attorney and director of the Women’s Justice Center at the Elisabeth Haub School of Law at Pace University in White Plains, New York.
There are a few states in the US that don’t provide for any grandparent rights, including Washington, New York, New Jersey, Iowa and Florida. “These are states where the courts have found that any statute that would give a grandparent rights is unconstitutional,” says Monica Mazzei, a family law specialist and partner with Sideman & Bancroft in San Francisco. But most states do recognize some type of grandparent rights, and although every statute is worded a little differently, “the gist of all is that if the court has the discretion to award them, it’s on a case-by-case basis,” says Mazzei.
With a few exceptions, it’s very difficult for grandparents to obtain visitation and custody rights if one or both parents are still alive, able to care for their kids and—for some reason—don’t want grandparents involved. “The overarching message in New York’s statute is, ‘what is the best interest of the child?’” says Briendel. “The other message is that children should stay with their parents if at all possible—that’s not directly written, but that’s the implication as it’s written.”
To get grandparent visitation rights, you must first be sure you’re qualified. “In New York, the only grandparent who has the ability to request visitation or custody are the ones who are legally recognized as grandparents,” says Briendel. “If a mother and father aren’t married and Dad isn’t legally determined to be the father, his parents don’t count.”
Grandparents should seek an attorney who is specifically well-versed in elder rights, says Mazzei. In many states, there’s not a lot of hope for grandparent visitation rights if there’s an intact family (a domestic couple living together, no divorce) who is not allowing a child to see a grandparent seeking visitation. “If both parents are saying ‘no,’ it’s very unlikely that the court would grant it,” says Mazzei.
If you’re in a situation where one parent has passed away and the surviving spouse isn’t allowing their in-laws to see a child, a grandparent might be able to file a petition seeking an order of visitation. In New York, “the court won’t even entertain the application—they won’t even look at it—unless one parent has passed away or something called ‘equity’ is involved, which would dictate that the grandparent should then be able to tell the court it’s in the best interest of the child,” says Briendel.
An example of equity: If a grandparent has a history of seeing their grandkids on a regular daily or weekly basis and that relationship is suddenly cut off because the parents move, that’s not fair—equitable—to the child.
Many states require a preexisting relationship between a child and grandparent before granting rights to see a child, and courts will only order visitation if it’s in the child’s best interest. Factors that help determine a child’s best interest are purposefully written broadly, ensuring that the court has a lot of discretion, says Mazzei.
“You have to enter the child’s world,” says Briendel. “They check to see if a child is loved, fed, praised and nurtured and properly allowed to grow, encouraged to go to school and that you don’t malign a noncustodial grandparent or parent in front of the child—essentially whether you’re raising a happy, healthy child.”
Gaining custody of grandchildren isn’t an easy feat. Most of those dependency suits happen when courts deem parents unsuitable or incapable of taking care of anyone else. In New York, seeking custody is a two-part process. “Grandparents have to establish their right to ask the court to determine the child’s best interest, and they have to show there’s an extraordinary circumstance before the court even will start to consider whether there’s a case to be had,” says Briendel.
The statute lists one concrete example of an extraordinary circumstance: If a child has lived with a grandparent for two years straight without contact with or from their parents, that’s an automatic extraordinary circumstance, says Briendel. The courts “will—they should—grant custody.” If the court finds that a parent is unsuitable—they’re struggling with drug addiction, are institutionalized or are in some other incapacitated state—that’s also an extraordinary circumstance.
According to Mazzei, in most states, the court will look at things like:
- What is the existing relationship between a grandparent and child?
- What is the grandparent’s means to care for the child?
- Do the grandparents have any health issues that would make parenting difficult for their age?
For grandparents to become legal guardians of children in the event that both parents pass away, they need to be named as such in a will, says Natacha Kolb, a partner in the estate planning group at Sideman & Bancroft. “That’s very common, as long as the grandparents are still competent and young enough to care for the children,” she says.
If a spouse, thinking ahead, is worried about what might happen to the relationship between a grandparent and grandchild if they should die, they could include specific requests in their will, like asking for their children to spend summers or certain holidays with their parents. Whether or not the surviving parent acquiesces isn’t something a grandparent should expect a court to rule on, though. “A parent could throw some precatory language in the will to show their intentions, but it’s a wish and not enforceable,” says Kolb.
One way to up your chances of gaining grandparent visitation or custody rights: Establish a history of trying to form a relationship with your grandchild. “If a grandparent is being estranged from the child, I encourage them to send birthday/holiday cards and reach out,” says Briendel. “It may be that the efforts never reach the child, but try to do it and document it.”
“There are, unfortunately, crazy parents with sane grandparents,” she says. “In those situations you have to try and demonstrate that the grandparents attempted to maintain a relationship with a child.”
About the experts:
Natanya Briendel, Esq., is a staff attorney and director of the Women’s Justice Center at Elisabeth Haub School of Law at Pace University in White Plains, New York. She is also an adjunct professor at Mercy College where she teaches constitutional law and criminal justice. Briendel received her law degree from Suffolk University School of Law.
Monica Mazzei is a certified family law specialist and partner with Sideman & Bancroft in San Francisco, where she works with clients throughout the litigation process and in mediation. She earned her law degree from Southwestern Law School in 2002 and completed the Program on Negotiation at Harvard Law School in 2013.
Natacha Kolb, Esq., is a partner in the estate planning and tax groups at Sideman & Bancroft. She is licensed to practice law in California and New York and is a member of the Bar Association of San Francisco and American Bar Association. She earned her Masters of Law degree from University of California Hastings College of the Law in 2005.