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How can grandparents exercise custody, visitation rights?

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by Jaye Taylor
Shareholder and Attorney at Buckley Law P.C. 

In the emotional turmoil that surrounds divorce, grandparents can sometimes take a back seat. While judges first must consider what is in the best interest of the child, deeply committed grandparents may have legal rights in the divorce process, and can be instrumental in the child's emotional and physical development.

The federal courts have ruled that some state laws allowing visitation to grandparents were unconstitutional. Some of these states have adapted their laws and some have not.

Timing is very important. In Oregon, a judge is allowed to consider the relationship between the grandparent and grandchild as well as the relationship between the child and parent when considering grandparent visitation rights. Those relationships can change dramatically and quickly once a divorce is pending. If the child is ultimately adopted, grandparents may lose all visitation rights. If you have been very close to your grandchild up until the parents split up, you might lose your legal rights by waiting too long to request custody or parenting time from the court. Be sure to consult your own attorney within the first month if you think you might need to intervene in order to preserve your rights.

The best interests of the child

When considering grandparent visitation rights, the first condition that needs to be established is the best interest of the child. Courts also consider the prior relationship between the child and grandparent as well as any harm visitation by the grandparent might cause to the relationship between the child and parent. If your relationship with the custodial parent is hostile, you could have an uphill battle against an otherwise fit parent who objects to your efforts to see your grandchild. So the first rule is to do your best to get along.

Courts understand that children need their family in their life - including grandparents. When other family members are included in the visitation rights, they may be called "third-party visitation rights."

Sometimes a judge will allow grandparent visitation rights even if the divorced parents don't agree. This is rare, but if the court sees the child would benefit from a relationship with the grandparents, it might make such a move.

Some conditions that need to be met

When considering whether to allow grandparent visitation rights, a court will consider:

  • The child's relationship with the grandparent
  • The parent's relationship with the grandparent and the effect the visitation will have on the parent and child
  • The last time the child had contact with the grandparent
  • Whether grandparent visitation will cut into the visitation time the child will have with parents or other family members

While laws differ between states, federal law requires each state to recognize grandparent visitation rights granted in another state.

Jaye Wickham Taylor focuses her practice on family law litigation. Jaye Taylor has successfully litigated some of the most challenging and emotionally charged family law cases in the state, involving custody of children to fathers, severe parental alienation and abduction, allegations of domestic violence and international move-away cases.

Specialties: Custody, Support, division of assets and debts, modifications, elder abuse, will contests, adoptions, domestic violence, domestic partnerships, prenups.

The information contained in this article is for informational purposes only and does not constitute legal advice. You should not act upon any information contained in this article without consulting an attorney for individual advice regarding your own situation.

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