There are two basic rights with respect to grandparents and their grandchildren- custody and visitation.
Custody involves the legal rights and obligations consistent with that of the taking on the full-time parenting and rearing of a child. This decision requires a major commitment on behalf of the grandparents and, if the parents are not willing to voluntarily surrender custody, the blessing of the court.
Visitation is when the court sets a specific schedule of time that grandchildren are to spend with their grandparents. Again, the actual applicable laws vary from state to state, so it is very important to understand exactly which of these laws do and do not apply to your own particular situation. It is beneficial to seek the advice of a lawyer or conduct independent legal research on the subject.
While it is a fact that the rights of parents are guaranteed under the Constitution, this does not mean parents are completely free to do as they please with respect to the raising of their children. A state can, as "parens patrie", step in a make decisions with regards to parental control of children in cases where there is found to be "reasonable relation to any end within the competency of the state." Quite simply put, if the court feels there is enough evidence to substantiate the fact that the parents are not acting in the best interests of the child, then the court will step in and act accordingly.
Obtaining Court-Ordered Visitation
Many states have laws that grant rights to grandparents who seek court-ordered visitation with their grandchild. These statutes are intended to recognize the importance of a continuing relationship between grandparents and their grandchildren. Time spent with grandparents is noted to be of great value to a child's overall growth experience. In some states the grandparents can only seek court-ordered visitation under limited circumstances, such as "in the case of the death of a parent". However, in many states, the rights of grandparents have been broadened to allow for visitation rights. In some instances, the grandparents are unable to spend time with their grandchildren because the child’s parent does not or cannot exercise the option to visitation. In some cases, the distances involved do not allow for easy access to such visitation.
Being Denied the Right to Visitation
In cases where the family relationship is still intact, i.e., the parents are not divorced, there are a different set of standards that will be applied by the court. This would relate to cases where one parent has died and the other does not wish to allow visitation, or both parents, still living, object to the visitation. In these circumstances, the grandparents must go through a two-step process. First, the grandparents must prove their entitlement by demonstrating there was a meaningful relationship with the child before the change in the family structure. Should the court find this acceptable, the grandparents must then demonstrate to the court that such visitation, although against the wishes of the surviving spouse, is in the best interests of the child.
Not surprisingly, the court is often hesitant to grant visitation against the wishes of an intact family. Both judges and mental health professionals have stated in such cases, that should the court grant the grandparents' request, there is the possibility that the child could lose faith in the overall stability and security of the family structure. In this instance, the positive aspects of a continuing relationship would not be enough to warrant a court order which could bring potential harm to the child.
The Best Interests of the Child
Often, in order to substantiate the “best interests" of a child, the grandparents must present testimony of "expert witnesses". An expert witness would be a professional, a psychiatrist or psychologist. Sometimes, the court itself will appoint its own mental health professional to conduct evaluations with regards to the emotional stability and functioning levels of the parties involved (i.e., the children, parents, and grandparents). For the most part, it is agreed that a grandchild's best interests WOULD be served by a continuing relationship with caring grandparents and other extended family members. It is noted that grandchildren often feel more comfortable discussing certain issues with their grandparents as opposed to friends in a peer group or even the parents themselves. Grandparents are found to be less judgmental than parents and are able to provide a different sort of perspective on issues.
Children Born Out of Wedlock
With respect to children born out of wedlock, grandparents may be granted visitation rights only after the actual paternity of the child has been legally established. In cases where parental rights have been relinquished, such as in the case of a child put up for adoption, the court takes the position that the grandparents' rights have been relinquished as well.
Animosity Between Parents and Grandparents
In any situation where a grandparent goes to court in an attempt to secure visitation rights, it is naturally assumed that there must be animosity among the respective family members. The rationale is that if such animosity did not exist, there would be no need for the intervention of the court. Case histories have amply demonstrated that even when the grandparents are awarded a visitation schedule, the parents who oppose are not likely to comply with the court order. While grandparents do have outlets to enforce court orders, such as contempt and incarceration, it is generally recognized that the existing animosity will only increase. Often, the court takes this into consideration as they feel that such situations only serve to increase the stress placed upon a child and therefore work against the "best interests" theory.
Courts will always be concerned that such animosity between parents and grandparents will be openly displayed towards one another in the presence of the children. Such displays are considered to be harmful to the child. Also, the court assumes that it is not unnatural for a visiting grandparent to express negative thoughts towards the parent(s); this, too, is also considered to be harmful to the child. In cases where the grandparents are well off and can afford protracted litigation, the court is aware of the fact that children are apt to become mere pawns in the struggle between the parents and grandparents.
Taking these considerations as a given, it is widely recommended that some sort of agreement between the parents and grandparents be reached outside of court. Often, the use of mediation by a third party is an effective means to that end. Sometimes the third party is a mutually respected family friend or it may be a professional. In the unfortunate circumstance that agreement cannot be reached, grandparents are encouraged to seek the advice of legal professionals, as the applicable laws are sometimes difficult to understand and will differ from state to state.