Rights of Grandparents to Visitation, Custody

OCTOBER 8, 1995 VOLUME 3, NUMBER 15

Although there have always been grandparents who raised their grandchildren, the phenomenon is much more common in recent years. With more broken and nontraditional families, there are also more opportunities for disagreement over visitation and other contacts.

During the past year, a number of courts in other states have addressed various aspects of grandparent custody and visitation. While Arizona courts might reach a different result, the cases illustrate legal analysis:

In 1989, Alabama courts decided that “M.G.”, a minor, should live with his grandparents because of his father’s substance abuse problems. Four years later, his father succeeded in regaining custody. The grandparents appealed, but the Court of Appeals agreed that the father’s circumstances had improved.

In Ohio, two children were placed in the custody of the state child protective agency because their parents could not form an emotional bond with them. Their grandmother sought to intervene in the juvenile court action, but the court declined to permit her to be a party. The Court of Appeals agreed that she did not have automatic standing to intervene in the proceeding, though she could still be given custody of the children.

In Iowa, the paternal grandparents of two girls sought to reopen their son’s divorce, in which custody was awarded to the girls’ mother. The court dismissed the request, noting that the grandparents did not have standing to intervene. The Supreme Court agreed, dismissing the grandparents’ petition.

In Pennsylvania, a grandmother who had custody of her grandchild refused to permit visitation by a cousin. The cousin filed an action to compel visitation, which was granted. On appeal, the higher court agreed and permitted the cousin to remain involved, noting that the cousin had a sustained and sincere interest in the child.

In New Jersey, “L.M.” was placed in foster care after her mother was convicted of endangering her welfare and sentenced to prison. L.M.’s grandmother sought to gain custody, but the court did not permit her to intervene. On appeal, the higher court held that L.M.’s best interests should be presumed to be served by living with family, and reversed the lower court.

And in both Nebraska and Ohio, courts have recently agreed that grandparents’ rights to visitation are terminated by the adoption of the child. In the Nebraska case, the adoption was by the maternal grandparents of the child, and in the Ohio case by the child’s stepfather, but in both cases the paternal grandparents’ rights to visitation ended with the adoption.

Several of the same principles have been enunciated in previous Arizona cases. Of course, individual facts may change the legal result.

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