Exploring Grandparents’ Rights

    Keep family Relationships in Solid Shape

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    There is no relationship quite like that of a grandparent and grandchild. Grandparents universally speak of the joy it brings. In her book, Becoming Grandma, Leslie Stahl writes, “There is no weariness that competes with the elation and joy of being with grandchildren.”

    On the flip side, family relationships can be complicated, and estrangement can grow between grandparents and their adult children, jeopardizing the relationship with the younger generations. Complications often occur when the grandparents feel the grandchildren are not being raised properly, when adult children feel there is too much interference in their lives, when there is resentment or tension, when a parent dies, or when a divorce occurs.

    Wise grandparents understand that it is not their role to tell their adult children how to raise their own children. They find ways to be helpful and to enjoy time with the grandchildren without interfering. Admittedly, it can be hard for grandparents to accept that they have no say in where their grandchildren live or go to school, what they eat, when they go to bed, or what lifestyle they have. But wise grandparents follow a golden rule of grandparenting: Have a happy relationship with the grandchildren, and resist offering opinions, no matter how difficult that might be.

    Try as they may, families sometimes just can’t get things to work, and they find themselves turning to the legal system for help. The child’s parent or parents may block further contact with grandparents, and the grandparent may want to resort to taking legal steps to maintain contact with their grandchildren.

    Being a grandparent is one of life’s most rewarding experiences, but a grandparent’s rights are not constitutionally protected. It is very difficult in Virginia for grandparents to obtain court-ordered visitation when the family is intact if both parents want to deny them visitation.

    The right of parents to raise their own children is protected by the Fourteenth Amendment to the United States Constitution. For the state to interfere with that right, there must be a compelling state interest necessary to protect the child’s health or safety. When both parents object to grandparents’ visitation, not only must a court find visitation to be in the grandchild’s best interest, it also must find an actual harm to the child’s health or welfare if grandparent visitation is denied. On the other hand, if only one parent objects, the court need not find actual harm would occur if grandparent visitation was to be denied, so the standard varies greatly depending on whether visitation is opposed by both parents or only by one.

    If you find yourself in a situation where grandparent visitation is an issue, look hard for ways to work this out within the family and think of mediation possibilities. The court should only be a last resort. Virginia has enacted statutes that can address grandparent rights when court seems like the only option. Section 20-124.1 of the Code of Virginia specifically names grandparents as persons with a “legitimate interest” in child custody and visitation cases. Section 20-124.2 of the Code requires the court to “give primary consideration to the best interests of the child,” and sets a higher standard of proof for persons other than parents. The section further provides that “the court shall give due regard to the primacy of the parent/child relationship, but may, upon a showing by clear and convincing evidence that the best interests of the child would be served, thereby award custody and/or visitation to any person with a legitimate interest.”

    In other words, grandparents and parents need to remain civil and treat each other with respect to maintain familial relationships that will serve the best interests of the children they care about.

    If you are concerned about the wellbeing of children or grandchildren, and are wondering how to protect the children’s interests, it is best to sit down with a family law attorney and consider the various options for approaching the situations. An experienced attorney may have ideas or suggestions for you that you have not considered, and can guide you in the right direction.

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    Phoebe Hall
    Phoebe P. Hall is an elder law, estate planning, and family law attorney who has been practicing law since 1969. She is CEO of Hall & Hall, PLC and sits on the board of visitors for Virginia Commonwealth University. A Richmond resident, she has two children and three granddaughters.