Jan L. Warner & Jan Collins
Question: When our daughter and son-in-law split, because of her emotional disabilities, she moved in with us. He went to court and got temporary custody of our three grandchildren ages nine, six, and two. Our daughter received supervised visitation with the children for only six hours a week. Because he refused to allow us to see our grandchildren for meaningful periods of time outside the presence of our daughter, we hired a lawyer and went to court. In addition to spending a lot of money that we don't have, we have been subjected to unimaginable indignities -- mainly because our daughter has severe emotional problems. We are in our late 50’s and are doing everything we can to help the situation. We have done nothing wrong. Don't we have some rights too?
Answer: Fit parents in an intact family have the right to say who visits the children and who does not. But once the family unit splits, it's a different ball game. With the epidemic of divorces and remarriages that simultaneously interrupt and create different relationships for children, the parents of the non-custodial parent are often cut off from their grandchildren, despite psychological bonding.
Although grandparents had no historical legal right to obtain court-ordered visits, a movement began years ago that led to recognition that children sometimes need ongoing relationships with important people in their lives other than their parents. Grandparents led the efforts to permit themselves -- and other deserving third parties -- to seek visitation. Today, all states have enacted laws that preserve these rights in some fashion - but the laws of each state differ and have been subjected to constitutional challenges.
Some state laws limit the visitation rights to those related to a deceased or non-custodial parent, while others allow any grandparent to petition for visitation as long as the parents have separated. There are even states that extend the right to apply for visitation to great-grandparents, aunts, and uncles.
Not long ago, the United States Supreme Court found one grandparent visitation law to be a violation of the due process clause of the Fourteenth Amendment which protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. While this decision, and others, is worrisome, it appears they are limited to the specific facts of each case.
Generally, to secure visitation, you must convince the court that you have a good relationship with the children, that you have been denied contact with the children, and that the children's best interests will be served by granting you visitation. The court will also consider the cumulative effect of the children having court-ordered visitation with your daughter and yourselves. In a situation where a parent has emotional problems so severe as to justify supervised visitation, an evaluation by mental health clinicians and questions about your emotional background are the norm, and you should have been prepared by your lawyer to face this contingency. In most states, grandparents must demonstrate that visits are in a child's best interest; in some states they face the tougher task of proving a child would suffer harm without the visits.
