If Parents Are Unable to Care For Their Children, Do Grandparents Have the Legal Right to See Them?

I cannot answer this question as the law applies in every jurisdiction, but I can give you the answer as the law applies in Utah, which is the state where I practice divorce and family law, which includes a great deal of child custody law as well.

As I’ve spoken to people over the course of my career open (25 years as of the date this is written), I have noticed that most believe that grandparents either already have or should have “rights” to interact with their grandchildren. and by “interaction” most people define that as the right of grandparents too personally interact with them and to communicate with them (whether that be on the telephone or by video conference or in writing).

I believe the reason most people feel this way is because most people have good feelings toward and memories of their grandparents, and so they hastily believe that all grandparents are good and that all grandchildren would benefit from regular contact with their grandparents.

But just as soon as they read the previous paragraph, most people see the error in such thinking. They realize, when reminded, that not every grandparent is the kind of person who can and ought to interact with his/her grandchildren because some people are dangers to themselves or to others, some people are bad examples, bad influences.

According to some cursory research that I conducted in preparing this answer, all 50 states in the United States of America have grandparent visitation laws on the books. Utah is no exception.

Utah’s original grandparent visitation law (it has since been amended and the amended current version of the statute can be found here), however, was found to be an unconstitutional infringement of parental rights. in the case of Jones v. Jones (2013 UT App 174, 307 P.3d 598 (Utah Court of Appeals 2013). The old version of the statute entitled–over the objection of the parents of the child–grandparents to a court order of grandchild visitation, as long as the grandparent or grandparents met these requirements:

(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.

The Utah Court of Appeals, in Jones v. Jones, held that the problem with the original grandparent visitation rights statutes was that it was unconstitutional. The Court of Appeals opined:

¶ 24 The Grandparent Visitation Statute qualifies as “legislation infringing parental rights” in a substantial, not merely incidental, way, because it allows the state to override a parent’s decision regarding the care, custody, and control of her child. See Wells[Wells v. Children’s Aid Soc’y of Utah, 681 P.2d 199, 206 (Utah 1984))], 681 P.2d at 206; see also Washington v. Glucksberg, 521 U.S. 702, 767 n. 8, 117 S.Ct. 2258, 138 L.Ed.2d 772 (1997) (Souter, J., concurring in the judgment) (noting that “not every law that incidentally makes it somewhat harder to exercise a fundamental liberty must be justified by a compelling counterinterest,” but only those laws that substantially infringe on a fundamental liberty interest); Koshko v. Haining, 398 Md. 404, 921 A.2d 171, 187–91 (2007) (holding that the state’s grandparent visitation statute infringed on a fundamental right in a direct and substantial way). Furthermore, as noted above, the application of strict scrutiny is consistent with the majority of other jurisdictions to address the issue under the federal constitution. We agree with the reasoning of those cases and thus conclude that strict scrutiny review applies to Mother’s claim that the statute, as applied, violated her rights under the Utah and United States Constitutions.

  1. The Statute as Applied to the Facts of This Case Does Not Withstand Strict Scrutiny.

¶ 25 As noted above, a “statute that infringes upon [a parent’s] ‘fundamental’ right is subject to heightened scrutiny and is unconstitutional unless it (1) furthers a compelling state interest and (2) ‘the means adopted are narrowly tailored to achieve the basic statutory purpose.’ ” Jensen ex rel. Jensen v. Cunningham, 2011 UT 17, ¶ 72, 250 P.3d 465 (quoting Wells, 681 P.2d at 206). The Grandparent Visitation Statute as applied to the facts of this case satisfies neither element of this test.

To remedy the unconstitutional defects in Utah’s grandparent visitation rights statute, the defective part was amended to provide:

(2)(a)      In accordance with Section 80-2a-201, it is the public policy of this state that a parent retains the fundamental right and duty to exercise primary control over the care, supervision, upbringing, and education of the parent’s children.

(b) A court shall presume that a parent’s decision in regard to grandparent visitation is in the best interest of the parent’s child.

(3) A court may find the presumption in Subsection (2)(b) rebutted if the grandparent, by clear and convincing evidence, establishes that:

(a) the grandparent has filled the role of custodian or caregiver to the grandchild that:

(i) is in a manner akin to a parent; and

(ii) the loss of the relationship between the grandparent and the grandchild would cause substantial harm to the grandchild; or

(b) both parents are unfit or incompetent in a manner that causes potential harm to the grandchild.

The old statute was also amended to omit this provision of the old statute:

(4) Subject to the provisions of Subsections (2) and (3), the court may inquire of the grandchild and take into account the grandchild’s desires regarding visitation.

So what does this all mean for grandparents seeking visitation rights with their grandchildren in Utah? To put it simply, it means that for grandparents to win a case seeking rights of visitation with their grandchildren, they can’t merely show that it would be in the child’s best interest and that the child would suffer mayor harm without visitation with the child grandparents, the grandparents must show that either A) the grandparent has filled the role of custodian or caregiver to the grandchild that is in a manner akin to a parent and that the loss of the relationship between the grandparent and the grandchild would cause substantial harm to the grandchild; or B) both parents are unfit or incompetent in a manner that causes potential harm to the grandchild. merely showing that it would be “in the best interest of the child” for the grandparents do have visitation with the grandchild is not enough to obtain a court order of grandparent visitation in Utah.

Utah Family Law, LC | | 801-466-9277

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