Given the instability of many American families, now more than ever, parents are relying on grandparents to help them support and rear their children, but what happens when the couple divorces and one parent does not want the grandparents to be as actively involved or to have visitation rights?
Recently on our divorce forum a grandparent asked, “My son and daughter-in-law are getting divorced. I have been involved in my grandchildren’s lives from birth, but now my daughter-in-law is threatening to cut me off. What are my rights?”
Laws protecting grandparent’s rights
Unfortunately, given the differences in state laws concerning grandparent’s rights, it’s tough to answer this question. It’s important that you discuss your case with a family law attorney and find out if there is anything you can do to protect your rights.
It’s also important to review your state’s laws. For example, in the state of Texas in V.T.C.A., Family Code 14.03., grandparents are allowed visitation rights under the following conditions:
- If the child has been incarcerated in jail or prison the three month period preceding the application.
- The child has been determined to be legally incompetent or is dead.
- If the parents are divorced or have been living apart for the three months period preceding the filing of the application or if a suit for dissolution of the marriage is pending.
- If the child has been abused or neglected by a parent.
- The child has been adjudicated to be a child in need of supervision or a delinquent.
- The Grandparents child has had their parental rights terminated.
- The child has resided with the grandparents for at least six months in the twenty-four month period preceding the filing of the application.
Determining the best interest of the child
While some states, like Texas, have instituted statutes which provide a list of factors the court must consider prior to awarding grandparent’s visitation, judges in other states may use other factors to determine what they believe are in the best interest of the child. This process is similar to what they use for considering general custody arrangements. These factors can include:
- Whether the visitation is in the physical and emotional interest of the child
- The wishes of the parents
- The ability of the grandparents to meet the needs of the child
- The wishes of the child
- Whether the grandparents and child had a strong relationship prior to the divorce
- Whether there is evidence of abuse by the grandparents
- Whether the grandparents are able to provide love, affection, and proper contact with the child
- The distance to visit the grandparents
- Whether the court has deemed either parent is unfit
After the courts review the following factors, in some states, they may allow visitation by the grandparents if they decide it is in the best interest of the child.
Should I take the parents to court?
If your son is agreeable to allowing you visitation it may help to solicit his help in resolving this issue. If a simple conversation does not resolve the issue of your access to the kids, you may need to find out if mediation is possible. Mediation not only allows for you to avoid court, it also allows for a neutral, third-party negotiator to help you get what you want. The last resort is taking your son to court and fighting it out.
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