Grandparent and Non Parent Rights in Custody Cases Part 1

It’s a truth universally acknowledged that children are wonderful. Well, unless they’re terrible, because sometimes that happens, too. But, regardless of how terrible they might be on any particular day, they’re certainly loveable, and they wiggle their way into our hearts – and the hearts of lots of other people that they come into contact with — in about a million different ways.

When grandparents and other non parents (like aunts, uncles, and stepparents) start to petition for custody and visitation, though, problems often follow. It happens fairly frequently in custody and visitation cases, with varying degrees of success.

In visitation cases

In many, many of these non parent cases, I see petitions filed for visitation only. This typically happens in situations where one or both of the parents are trying to keep the children away from the grandparent (or other non parent, but I’ll use grandparent the rest of the way through this piece, so as not to be confusing) – or, at least, the grandparent feels that this is what’s happening. The grandparent wants more time with the child, so she turns to the court to petition for visitation.

A petition for visitation is NOT a petition for custody. In this example, grandma is not expecting to take custody over from a biological parent. So, although I can certainly understand how off putting this would feel, I want to reassure you that a petition for visitation is a different animal.

When you and your child’s father agree: “Grandma can’t have visitation!”

Additionally, she will likely have some difficulty prevailing on her petition, especially if you and your child’s father are united in your agreement that this particular grandparent (or set of grandparents, or other non parent person) should not have time with the children.

We’ve talked over and over again about the “best interests of the child”, including the ten factors that the judge must consider when determining whether a custody or visitation arrangement is in a child’s best interests. In a grandparent or other non parent case, though, “best interests of the child” does not govern. The grandparent must meet a higher standard than “best interests” and prove to the judge that “actual harm” would come to the child if visitation is not awarded. I probably don’t need to tell you that’s an incredibly difficult standard to meet.

It’s not enough to say that, “oh, the child will be harmed because she won’t have a relationship with me”. That’s not actual harm. The grandparent would have to show actual, specific, measurable harm that would befall the child.

If you and your child’s father agree that this grandparent shouldn’t have visitation with the child, the court will almost certainly respect that decision. Hey, you guys are the parents! It’s up to you who you allow to be around your child.

That doesn’t mean, of course, that the petitions can’t be filed, or that the court won’t investigate. And you may very well feel that it’s unfair that this non parent person can drag you into court, especially when you and your child’s father likely have very good reasons why this person should be excluded from your child’s life – or, at least, that contact should be limited, and that specific visitation should not be awarded. You’ll have to see the petitions through, but, as the biological or adoptive parents, you and your child’s father have the power.

When you and your child’s father don’t agree about grandma’s involvement

Understandably, it’s a little more tricky when you and your child’s father don’t have an agreement about what the appropriate scope of grandma’s involvement in the child’s life should be.

Still, it’s hard for grandma to get her own visitation specifically delegated to her by the court. We’re still talking about the actual harm standard here.

Most of the time, in these cases, the judge will find that grandma can have time, if dad (or the parent agreeing that this visitation should take place) will delegate a portion of his visitation to grandma. Grandma doesn’t get her own, specific, unique visitation, but dad can give her some portion of his time with the children, if he wants.