Grandparents will sometimes find themselves in a situation where one or more of their grandchild’s parents are not permitting the grandparent to visit the grandchild. Such a situation might arise from a death of a parent, a divorce, a termination of a parent’s parental rights, a strained relationship, etc. Grandparents in these situations often wonder, what rights do I have to have a relationship with my grandchild?
In essence, the answer is that the State of Utah allows grandparents to file a petition with a court to ask to be granted visitation rights with their grandchildren. But grandparent visitation rights are neither guaranteed nor easy to obtain.
Utah Code Ann. § 30-5-2 addresses grandparent visitation. The law notes that a court will assume that parent(s) are in the best position to make decisions regarding their own children, and that a determination to not allow grandparent visitation is in the (grand)child’s best interest. This preference toward parents’ decisions is a reflection of the United States Supreme Court’s decision in Troxel v. Granville, which ruled that parents have a fundamental right to rear their children.
The parent’s decision could be overturned by courts, but only in narrow circumstances. The Utah Supreme Court decided in Jones v. Jones that it’s proper for a Utah court to award grandparent visitation rights, against a parent’s wishes, only if the grandchild would experience substantial harm otherwise. This can occur when a grandparent has acted as the grandchild’s custodian or caregiver, or otherwise has a substantial relationship with the grandchild, and the loss of the relationship would likely cause harm to the grandchild.
If you are a grandparent who has never acted as a (grand)child’s primary custodian or caregiver, you might ask, What does Utah law consider to be a “substantial” grandparent-grandchild relationship?
For Utah law to consider a grandparent-grandchild relationship “substantial,” the relationship must be comparable to a custodian or caregiver relationship, even if the grandparent is not actually the grandchild’s primary caregiver. For example:
In Jones, the paternal grandparents provided some care to an approximately 16-month-old grandchild while the child and her father lived with the grandparents for six weeks. But both grandparents worked full-time and were not the child’s sole caretakers, and during the six weeks the father lived with them, the child lived with the mother half the time. The Court determined that this short-term assistance was inadequate to establish a substantial relationship.
In contrast, in another Utah Supreme Court case, Uzelac v. Thurgood, a child and mother lived with the maternal grandparents for three years. The grandparents provided substantial care for, and spent a considerable amount of time with, the grandchild during that time. Even after the child and mother moved into their own home, the grandmother continued to babysit several times a week, and spoke with the grandchild on the phone almost daily. A year later, the mother unexpectedly died, and the grandmother moved into the child’s home, providing full-time care during the court proceedings.
The grandmother petitioned for custody, but custody was granted to the father. After some time, the grandmother petitioned for visitation. The court found that the grandmother did have a substantial relationship with the child, and awarded visitation rights.
If a grandparent has evidence of a substantial relationship, and that harm would likely occur to the child if the relationship were lost, the Court could still consider a few other factors, such as:
- If the grandparent is a fit and proper person to visit with the child;
- If visitation had been unreasonably denied or restricted;
- If a parent is unfit or incompetent;
- If a parent has died or is the noncustodial parent through divorce or legal separation;
- If a parent has been missing for an extended period; or
- If visitation is in the best interest of the grandchild.
But the most important things the Court looks at is whether a “substantial” relationship between the grandchild and grandparent exists, and if the grandchild would be harmed if the relationship were lost. This is a challenge for many.
Of course, if you are seeking visitation with your grandchild, it is wise to consult an attorney. A lawyer can provide advice for your particular situation, assist you in negotiating an agreement with the custodial parent, and/or help you pursue court action.