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Grandparent Visitation

The issue of grandparent visitation can often be a very contentious and emotional one. Often grandparents play a significant role in the development of children, and in some instances, may be responsible for raising a child for a period of time. If those grandparents are then prohibited from seeing one or more of their grandchildren, they may be forced to take legal action.

Grandparents who have been cut-off from seeing their grandchildren by the parents (or guardians) of the children and who seek court intervention often have a challenging task ahead of them. Parents have familial and constitutional rights to raise their children as they see fit subject to very few exceptions. Accordingly, there is a presumption favoring the judgment of the parent against those third parties who are non-parents, including grandparents. The court system is often reluctant to step in and supplant a parent's decision making authority when it comes to raising children. The court will not interfere with a parent's decision unless circumstances of importance connected with the welfare of the child exist to overbear the legal right of the parent.

A grandparent may make an application for an order for visitation with the court. Contrary to popular belief, a separate action has to be filed by the grandparents if the parents of the child are going through a divorce; the grandparents cannot become parties to the divorce action for the purpose of seeking visitation. It shall be the burden of the grandparent to prove by a preponderance (i.e., more likely than not) that visitation is necessary to avoid harm to the child. In other words, the grandparents have the burden to prove that it is more likely than not that the child will be harmed if visitation is not ordered. The courts must also take into consideration such things like the relationship between the child and grandparents, the relationship between the grandparents and parents (or guardians), and any history of physical, emotional or sexual abuse or neglect by the applicant. The court must make specific findings in deciding whether or not the child will be harmed. It is often necessary for a court to engage a professional to prepare a psychological evaluation of the child. During that process, the parents/guardians, the grandparents and the children subject to the litigation will be interviewed by a therapist who will evaluate the relationship between the grandparents and children and to determine the harm, if any, that the children would be subjected to if visitation with the grandparents was not permitted.

Grandparents who had custody of the children previously often have an easier path to visitation. The courts will consider the fact that the grandparent had been the full-time care taker of the children as evidence that visitation is in the child's best interest. However, if the grandparents were the caretakers for the child a number of years or ago or while the child was a baby, the fact that the grandparents were once the caretakers of the child will most likely have less significance.

Grandparents often normally only get one shot at getting visitation and it is important the grandparents make a strong case from the onset of the litigation. The courts are very sensitive to subjecting parents to litigation and will only do so if there is sufficient credible evidence that the grandparents will be able to sustain their burden of proving that the child will suffer significant identifiable harm if visitation is not granted. Furthermore, the courts have determined that unless special circumstances exist, parents should not be faced with psychological examination or other intrusive measures, which are often necessary in grandparent visitation matters.

Grandparent visitation cases are extremely fact sensitive and each case is very different from another. If you are a grandparent seeking visitation, you will need attorneys who can help you prosecute your case. If you are a parent against whom a complaint for visitation has been made by a grandparent, you will need attorneys who are familiar with defending against such actions. The attorneys at Donahue Hagan Klein & Weisberg, LLC, have the experience to ensure that your case is presented in the strongest and most efficient manner.