Visitation

Visitation Rights of Grandparents and Other Third Parties

                                                                                                                                                                                                        

Generally

Any person with whom a child has developed a significant relationship may be entitled to visitation with the child. Visitation rights are not limited to biological parents, adoptive parents, equitable parents and/or grandparents That may include step parents, temporary caretakers or others. No one is automatically excluded, and no one is automatically included. The child's best interests are the determining factor.

Grandparents

Grandparent's have rights to visitation independently from a the rights to visitation exercised by their son or daughter.  Grandparents do not have to prove that “exceptional circumstances” exist before that can exercise visitation rights. A court may (a) consider a petition for reasonable visitation by grandparent, and (b)  if the court finds it to be in the best interests of the child, grant visitation rights to the grandparent. Grandparents are not automatically deemed to be entitled to visitation rights. A natural parent has a constitutionalright to make child rearing decisions. A parent is not obligated to grant a grandparent’s request for visitation. In fact, if visitation is made the subject of litigation, a parent’s decision about visitation with grandparents is presumed to be in the best interests of their child. It is, however, a presumption that can be rebutted. For grandparents considering litigation, however, it is an obstacle they must overcome. For example, a father’s objections to visitation by the maternal grandparents with their two young grandchildren after the death of the childrens’ mother were overcome in one case,  despite the father’s claims that visitation was  contrary to the best interests of his children. A Domestic Relations Master recommended visitation on the third Saturday of each month, one weekend per month and on Japanese days of celebration (The maternal grandparents were Japanese). In a hearing on Exceptions to the Master’s recommendation, the Circuit Court ordered father and grandparents to engage in counseling, with visitation to commence gradually as the counseling process progressed. The Appellate Court held that the Circuit Court had given proper deference to the presumption in favor of the father, but that the Court had properly concluded that the visitation was in the best interests of the children under the facts of that case. Hence, the maternal grandparents succeeded in overcoming the father’s objections, albeit at significant cost to all involved. In making a decision, the court must focus exclusively on the welfare and prospects of the child.  All relevant factors and circumstances will be considered in making this assessment. Some special criteria with regard to grandparental visitation include:

a.  The nature and stability of the child's relationships with its parents;

b.  The nature and substantiality of the relationship between the child and the grandparent, taking into 

     account frequency of contact, regularity of contact, and amount of time spent together;

c.  The potential benefits and detriments to the child in granting the visitation order;

d.  The effect, if any, grandparental visitation would have on the child's attachment to its nuclear family;

e.  The physical and emotional health of the adults involved; and

f.  The stability of the child's living and schooling arrangements.

Here's a Thoughtful Statement of a Grandparent's Point of View--Recommended reading if you are ambivalent.

Other Third Parties

Although not made the subject of specific legislation, other third parties may become entitled to visitation by virtue of having developed a significant relationship with a child. This would include children adopted by same sex couples, children born to one member of a same sex couple by artificial insemination, or children left with an unrelated third party during a natural parent’s absence for any reason.  For example, if a child is temporarily “abandoned” due to the life situation of one or both of its parents, this “surrogate” parent may develop a sufficiently close relationship to a child that continued access is in the child’s best interests. In all of these situations, the defining criteria remains the “best interests of the child”. The factual criteria are essentially the same as for grandparents, and the above list is a viable starting point for the analysis.

 

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