In 2000, the U.S. Supreme Court issued its opinion in Troxel v. Granville, a case involving the visitation rights of grandparents. Troxel held that a parent has a fundamental right to decide who has access to a child. It was found that a parent who is “fit” is presumed to make decisions – including the decision to prevent a grandparent from contacting a child – that serves the child’s best interest. This “fit parent” presumption can be rebutted if the grandparent shows, by a preponderance of the evidence, that the parent was not fit or that denial of access by a grandparent would impair the child’s well-being.
To obtain possession or access, the grandparent must prove all of the following:
1. At least one of the child’s biological or adoptive parents has not had that parent’s parental rights terminated; and
2. Significant impairment of the child.
a. If a parent has custody: the grandparent must prove that the child’s physical health or emotional well-being would be significantly impaired if the grandparent’s possession or access were denied.
b. If a Nonparent (i.e., Aunt, Uncle, Foster parent) has custody: several courts have held that a grandparent does not have to rebut the fit parent presumption – that is, they don’t have to prove that the child’s physical health or emotional well-being would be significantly impaired if the grandparent’s access were denied.
The grandparent must prove that the parent intends to completely deny the grandparent from having possession of or access to the child. The grandparent must prove that the grandparent is the parent of the child’s parent. The grandparent must prove that at least one of the following is true about the grandparent’s son or daughter who is the child’s parent:
1. The child’s parent has been incarcerated for at least three months before the petition is filed;
2. The child’s parent has been judicially declared incompetent;
3. The child’s parent is dead; or
4. The child’s parent does not have actual or court-ordered possession of or access to the child.
Grandparents can take steps for access to the grandchildren when the grandchildren’s physical health or emotional well-being will be significantly impaired if the grandparent’s access is denied. If the parents of the grandchildren are having issues with drugs or alcohol or are going to jail with legal problems, there are other ways to take possession of the grandchildren or have access for visitation. Because there are so many options open to grandparents, all grandparents should consult an attorney with experience in these areas before moving forward with the case.
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