It may be surprising to some parents that that their own parents may petition a court and obtain a court order requiring them to allow grandparent visitation. To most parents the right to make decisions and raise their children as they see fit, including the amount grandparent visitation, is a right inherent in being a parent. However, in some instances the court may find that court ordered grandparent visitation is appropriate. Keep in mind that this blog article only is speaking to grandparent visitation of a child, not custody of a child where a parent is unfit or absent.
One situation where we see grandparents get an order allowing visitation or “grandparent-time” is when a child has an absent parent, due to death or abandonment, and absent parent’s own parents, therefore, do not get to see their grandchild because of a deteriorated relationship with the child’s remaining parent.
Generally speaking, parents have a constitutional right to manage the care, custody and control of their child, which includes the right to make decisions regarding grandparent visitation. However, a parent’s right to make decisions regarding his or her child’s upbringing is not absolute. For example, while parents have the right to generally decide where to send their children to school, a state may nevertheless adopt compulsory school attendance laws requiring that you send your children to school before they reach a certain age. A state can also exercise its “parens patriae” power and intervene on behalf of children in abusive or neglectful situations even if the parent objects. The state must generally show that there is some important interest that trumps the parent’s constitutional right.
When it comes to grandparent visitation, the law in Utah protects parents’ rights to make decisions regarding their children by incorporating a rebuttable presumption that the parent’s decision regarding grandparent visitation is in the best interests of the children. Grandparents may still overcome this presumption by showing that there are special circumstances that require a court order allowing them to have visitation.
While the relevant statute lists several factors relevant to whether special circumstances exist to order grandparent visitation, the Utah Supreme Court has said that the statute is applied only in those instances where there is an absent parent of the child, as mentioned above. The requirement of a “missing parent” exists even where the grandparents argue that they have been unreasonably denied visitation and such visitation would be in the child’s best interest.
When looking at the statute, the next important criteria is bond. Grandparents have a much greater likelihood of success if they have historically played a role as a custodian or significant caregiver of the child. The court would be more likely to order grandparent visitation in order to continue to maintain an existing family bond between the child and the absent parent’s family.
The Utah Supreme Court gives the impression that it is hesitant to allow a judge to override a parent’s decision regarding grandparent visitation simply because the judge disagrees with the parent. The presumption in favor of the parent’s decision regarding grandparent visitation is a strong presumption and in order to prevail in court, grandparents must pull together many facts regarding their bond with the child and how they have really stood in the place of the absent parent.
Below is the relevant Utah Code section, though keep in mind that it must be viewed in context of the existing case law as well.
Utah Code Annotated Chapter 30-5-2. Visitation rights of grandparents.
(2) There is a rebuttable presumption that a parent’s decision with regard to grandparent visitation is in the grandchild’s best interests. However, the court may override the parent’s decision and grant the petitioner reasonable rights of visitation if the court finds that the petitioner has rebutted the presumption based upon factors which the court considers to be relevant, such as whether:
(a) the petitioner is a fit and proper person to have visitation with the grandchild;
(b) visitation with the grandchild has been denied or unreasonably limited;
(c) the parent is unfit or incompetent;
(d) the petitioner has acted as the grandchild’s custodian or caregiver, or otherwise has had a substantial relationship with the grandchild, and the loss or cessation of that relationship is likely to cause harm to the grandchild;
(e) the petitioner’s child, who is a parent of the grandchild, has died, or has become a noncustodial parent through divorce or legal separation;
(f) the petitioner’s child, who is a parent of the grandchild, has been missing for an extended period of time; or
(g) visitation is in the best interest of the grandchild.
A parent or grandparent should consult with an attorney to determine whether the facts in their particular case are such that court ordered grandparent visitation would be likely to occur and the grandparent claims would be sufficient to overcome the presumption in favor of the parent’s having the right to decide the amount of grandparent visitation.