Do Grandparents Have Legal Rights to See Their Grandchildren?

Many grandparents will tell you the perk of their special role is getting to soak up all the joy of their grandchildren without the day-to-day responsibility they had to worry about with their own kids. But sometimes circumstances require a more active role in raising that grandchild, which can open up a tricky can of worms.

It’s pretty common for grandparents to be naturally included in a grandchild’s upbringing, but it’s not always so easy and harmonious. And when there’s a disagreement about how much a grandparent should be involved, things can get ugly pretty quickly.

When that happens, do grandparents have any legal rights to accessing their grandchildren? We took a closer look at custody, visitation, and what happens when things get contentious enough to take the matter to court.

How common is it for grandparents to care for their grandchildren?

According to data from the 2020 Census, more than 7 million grandparents across the country are currently living with grandchildren who are younger than 18. And within that group, 33.4 percent of those grandparents are actually responsible for the care of their grandchild. 

Of course, living with your grandchild and contributing to caring for them is one thing, but taking legal action to solidify your role in their life is another matter. And in the experience of James Evans, a Texas-based family law attorney, that’s happening a lot more often now than it did even 10 years ago.

“To some degree, it seems like there are more issues with younger parents — I always call it ‘kids having kids,’” Evans says.  

The past few years have exacerbated these issues among younger parents. “The pandemic created economic stress. And unfortunately, a lot of mental health issues and addiction came out of that.”

Do grandparents have basic legal rights to their grandchildren?

The most common circumstance Evans deals with in his firm are grandparents who have become estranged from their own children but want to fight to continue a relationship with their grandchildren. If you’re a grandparent who’s in that scenario, you probably won’t like the answer to this question.

“I tell grandparents all the time that they do not have any rights legally — at all — to their grandchildren by virtue of being grandparents. They just don’t,” Evans says.

That’s because of a precedent-setting Supreme Court case called Troxel v. Granville from 2000, when Jenifer and Gary Troxel sued their son’s former partner, Tommie Granville, for the right to visit their grandchildren. 

Granville had been in a relationship with the Troxels’ son, Brad, which ended in 1991. The couple had two daughters, whom the Troxels saw regularly for weekend visits. That changed in 1993, when Brad died. Afterward, Granville told the Troxels she would prefer their interaction with the kids be limited to one short visit per month. The grandparents sued based on a statute in Washington state that held “any person” could petition for visitation rights “at any time.”

The case made it to the Supreme Court, where the justices decided that as long as a parent is able to provide a safe and stable environment, grandparents do not, in fact, have the right to assert themselves into their grandchildren’s lives solely because of their genetic relation. As Sandra Day O’Connor wrote in the opinion, “The liberty interest at issue in this case — the interest of parents in the care, custody, and control of their children — is perhaps the oldest of the fundamental liberty interests recognized by this Court.”

To put that more simply: “A fit parent gets to decide who their child spends time with,” Evans says. “A parent can decide what’s in their child’s best interest, and if they feel it is in their best interest to spend time with grandparents — or not — that’s the choice of that parent.”

But that doesn’t mean grandparents can’t make an attempt to legally change that. Convincing a court to make such a decision is a high bar, but it does happen in certain circumstances, and there are two avenues a case like this can take. 

In one of them, a grandparent pursues visitation that’s been sanctioned by the court. In this scenario, the grandparent would need to prove two things: One, that they have a substantial relationship with their grandchild; and two, that the child would experience some kind of emotional harm if that relationship were to come to an end.

The second option is when a grandparent seeks legal custody, and that’s a tougher case to make.

When would a grandparent seek legal custody of a grandchild?

“Usually, if they need to seek custody, it’s pretty obvious,” Evans says. “If a parent’s just not in a good place, it’s clear that that’s the right next step.”

This type of case is about a parent’s “fitness” to raise a child. And because of the Supreme Court’s ruling in Troxel vs. Granville, the law operates under a “parental presumption,” which means that a court will give custodial priority to a parent over another relative (like a grandparent, sibling, aunt, or uncle) unless there’s definitive proof that the parent is “unfit,” which Evans acknowledges is “a subjective standard.”

So how does the court decide if a parent is unfit?

“What you’re looking at is the parent’s mental health, their ability to make judgments, their criminal history,” Evans explains. “Do they have addictions that prohibit them from making good, sound judgments? Are they able to provide for the child economically in terms of basic needs like clothing, food, and shelter?”

A judge would also examine the parent’s lifestyle at large and how their behavior could influence a child who’s exposed to it. That would include questions like: Is the parent stable? Do they move to new homes often? Are they in and out of multiple relationships? And if they are, what type of relationships are they? If they’re engaging with partners who are violent or unsafe, that would be a red flag.

Sometimes, a parent and grandparent agree to share custody

“You might have a single parent who didn’t expect to be a single parent, and life has just not dealt a decent set of cards,” Evans tells us. “It’s very challenging economically to be a single mom or a single dad and manage all that, and sometimes you need the proverbial village to step in and help out.”

Many grandparents provide informal aid when parents need support, but Evans explains there’s a “fundamental difference” between pitching in with a little extra help and securing a legally-binding custody agreement. And in some cases, it’s mutually beneficial for a parent and grandparent to share custody.

That formalized arrangement makes it possible for a grandparent to take an active hand in important matters that typically would be left up to a parent or guardian.

“If a grandparent has legal rights — or, as some might say, rights of conservatorship — over the child, if there’s a medical circumstance, they can actually make decisions,” Evans says. “If there’s an education decision or a mental health decision that needs to be made, a grandparent would be able to make those decisions as if they were a parent, depending on how the order is structured.”

What should grandparents do to build a case proving that they deserve custody of a grandchild?

If they’re not in a situation in which a mutual agreement for shared custody is possible, grandparents have a tough road ahead in combating courts’ parental presumption. But there are things they can do to put themselves in the best possible position, and it’s all about documentation.

Step one is proving a “core involvement in caretaking,” which would include making significant decisions or contributing substantial financial support to their grandkids.

“I don’t mean financial support like buying Easter candy,” Evans says. “I’m talking about healthcare, out-of-pocket medical expenses, school tuition, tutoring, braces — life kind of things.”

The second important metric is the time they’ve spent with a grandchild. That can be as simple as keeping a detailed calendar of when they were together and what they did, but it’s even better to keep a thorough dossier with ample supporting documentation.

“We call them ‘photo journal calendars’ in my office,” Evans says. “We back that up with photos where you’re out together at the park or the zoo. You can also back it up with a debit card transaction where you paid for tickets or a doctor or dental visit.”

Technology has made that easier than ever, and Evans recommends keeping a folder in a storage service like Google Drive or Dropbox, which will allow you to link everything together and access it easily. That level of attention to detail is the gold standard in a case like this.

“Nobody’s ever that organized,” Evans says. “We’re talking about the super ideal client.”