When determining whether a grandparent is entitled to visitation rights, most states use the best interest of the child standard. While some states use the best interest standard along with other information, the best interest standard is the sole custody standard in 24 states. Grandparent Visitation and Custody Awards, 69 Am. Jur. Proof of Facts 3d 281 (2002, updated in 2012).
Some states take other information into consideration along with the best interest standard, such as whether the child has developed a substantial relationship with his grandparents, whether the visitation would interfere with the parent-child relationship, whether the visitation would interfere with the parents authority, whether the parents received notice, and the childs health.Id.
The burden of proving that exceptional circumstances exist and that visitation is in the best interest of the child usually falls to the grandparents. 69 Am. Jur. Proof of Facts 3d 281, Janway v. Jones, 88 So.3d 713 (La. Ct. App. 2d Cir. 2012). In Fennelly v. Norton, the trial court could not proceed and evaluate grandparents petition for visitation, as it did not include facts demonstrating that their relationship with their grandchildren was similar to a parent-child relationship. 931 A.2d 269 (2007). Without the factual basis for their petition, subjecting the fit parent to litigation was unwarranted. Id.
The Due Process Clause of the 14th Amendment guarantees a parents fundamental right to make decisions concerning the care, custody, and control of their children. U.S.C.A. Const.Amend. 14, Troxel v. Granville, 120 S. Ct 2054. The State will not interfere in the private realm of the family unless a parent does not adequately provide for his children and is found unfit. 120 S. Ct. at 2061. So, state courts give great weight to the opinion of a fit parent who opposes the grandparent visitation. SeeIn re McClean, 4 A.3d 423 (2010), In re Adoption of C.A., 137 P.3d 318 (Colo. 2006).
Many grandparent visitation statutes first require some disruption to the family unitdeath of a parent, divorce, abandonmentbefore a grandparent can petition the court for visitation. 69 Am. Jur. Proof of Facts 3d 281. Other statutes have no requirement of disruption to the family unit for a grandparent to petition for visitation. Id. A grandparent visitation petition may be filed independent of any other suits, or as part of a pending child custody or divorce action. Id.
Grandparent visitation usually cannot diminish a custodial parents visitation time. In an Illinois case, In re Pfalzgraf, the grandparents were unable to rebut the statutory presumption that a mothers decision was not harmful to the childs health and well being. 378 Ill. App. 3d 1107 (2008). The mother did not want the grandparents visitation time to diminish her personal custodial visitation time, and instead wanted the grandparent visitation to diminish the visitation time of the father, who was their son. Id. The court held that the grandparents visitation time should occur during the fathers, not the mothers, visitation.
Some states take other information into consideration along with the best interest standard, such as whether the child has developed a substantial relationship with his grandparents, whether the visitation would interfere with the parent-child relationship, whether the visitation would interfere with the parents authority, whether the parents received notice, and the childs health.Id.
The burden of proving that exceptional circumstances exist and that visitation is in the best interest of the child usually falls to the grandparents. 69 Am. Jur. Proof of Facts 3d 281, Janway v. Jones, 88 So.3d 713 (La. Ct. App. 2d Cir. 2012). In Fennelly v. Norton, the trial court could not proceed and evaluate grandparents petition for visitation, as it did not include facts demonstrating that their relationship with their grandchildren was similar to a parent-child relationship. 931 A.2d 269 (2007). Without the factual basis for their petition, subjecting the fit parent to litigation was unwarranted. Id.
The Due Process Clause of the 14th Amendment guarantees a parents fundamental right to make decisions concerning the care, custody, and control of their children. U.S.C.A. Const.Amend. 14, Troxel v. Granville, 120 S. Ct 2054. The State will not interfere in the private realm of the family unless a parent does not adequately provide for his children and is found unfit. 120 S. Ct. at 2061. So, state courts give great weight to the opinion of a fit parent who opposes the grandparent visitation. SeeIn re McClean, 4 A.3d 423 (2010), In re Adoption of C.A., 137 P.3d 318 (Colo. 2006).
Many grandparent visitation statutes first require some disruption to the family unitdeath of a parent, divorce, abandonmentbefore a grandparent can petition the court for visitation. 69 Am. Jur. Proof of Facts 3d 281. Other statutes have no requirement of disruption to the family unit for a grandparent to petition for visitation. Id. A grandparent visitation petition may be filed independent of any other suits, or as part of a pending child custody or divorce action. Id.
Grandparent visitation usually cannot diminish a custodial parents visitation time. In an Illinois case, In re Pfalzgraf, the grandparents were unable to rebut the statutory presumption that a mothers decision was not harmful to the childs health and well being. 378 Ill. App. 3d 1107 (2008). The mother did not want the grandparents visitation time to diminish her personal custodial visitation time, and instead wanted the grandparent visitation to diminish the visitation time of the father, who was their son. Id. The court held that the grandparents visitation time should occur during the fathers, not the mothers, visitation.
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