In recent years, the issue of whether a grandparent has the right to visit with a grandchild has become more prevalent. Sadly, when parents decide to get divorced, the parents of the non-custodial parent often end up cut off from their grandchildren.
The issue of grandparent visitation is complex. On the one hand, why should grandchildren be denied a relationship with their grandparents just because their parents are being divorced? On the other hand, shouldn’t parents have the ability to determine what is in the best interest of their own children without the court system intervening and infringing upon their civil liberties?
If you are a grandparent and are not seeing your grandchildren regularly, you may be entitled to grandparent visitation.
Missouri recognizes the rights of parents to raise their own children.
In the United States Supreme Court case, Troxille v. Granville (2000), the Supreme court held that a Washington grandparent visitation statute was unconstitutional. In part the court stated, “…the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a ‘better’ decision could be made…” Troxille v. Granville, 147 L.Ed. 61 (2001)
The Missouri Supreme Court, however, has held the Missouri grandparent statute to be constitutional. In its rationale, the Missouri court has explained that although parents have a constitutional right to make decisions affecting family, the grandparent visitation statute is reasonable both because it contemplates only minimal intrusion on family relationships and because it is narrowly tailored to protect the interest of parent and children. (See MO revised statute 452.402; Herndon v. Tuhey, 857 S.W.2d 203(Mo. banc); Blakely v. Blakely, 83 S.W. 3d 532 (Mo. banc)).
The Missouri court may order grandparent visitation under specific circumstances
Missouri law supports contact between grandparent and grandchild while attempting to encourage parents to resolve family disputes without court intervention. In an attempt to balance these two interests Missouri law permits grandparent visitation only in limited situations. There is no guaranteed right for a grandparent to have visitation with a grandchild.
The court may grant reasonable visitation rights to grandparents under the following circumstances:
1. The parents of the child have filed for divorce. Grandparents have the right to intervene solely on the issue of visitation rights. Grandparents also have the right to file a motion to modify the original divorce decree to seek visitation rights;
2. One parent of the child is deceased and the surviving parent denies the grandparent reasonable visitation rights;
3. The child has resided in the grandparent’s home for at least 6 months within the 24 month period immediately preceding the filing of the petition for grandparent rights;
4. The grandparent has been unreasonably denied visitation with the child for more than 90 days, unless the natural parents are legally married to each other and are living together with the child. In that case, the grandparent may not file for visitation. (The Missouri court reasons that when the parents are married and living together with the child, the parents know what is in the best interest of their child. See Missouri Revised Statute 452.402.02) ;
5. The child is adopted by a stepparent, another grandparent or other blood relative.
(See Missouri Revised statute 452.402.1)
The court will grant grandparent visitation only if it is in the grandchild’s best interest. A court will deny grandparent visitation if the visits will endanger the child’s physical health or impair the child’s emotional development.
The court may employ various methods to assist it in determining what is in the child’s best interest.
· First, the court may order a home study. A home study is an investigation performed by a court appointed investigator. The investigator may consult with anyone with information about the child and that child’s living arrangements to determine if the grandparent visits are in the best interest of the child. The investigator prepares a report for the court based on the information found.
· Second, the court may appoint a guardian ad litem to help determine the best interest of the child. A guardian ad litem is a licensed Missouri attorney appointed by the court to represent the interest of the child in this particular litigation. The guardian ad litem may participate in the grandparent visitation proceedings as though he or she were a party to the action.
· Third, the court may, in its discretion, consult with the child regarding the child’s wishes to determine the best interest of the child. (See Missouri Revised Statute 452.402.3, 452.402.4 and 452.402.5)
Both the maternal and paternal grandparents may seek grandparent visitation. The grandparents may seek visitation even if the parents are not presently married or have never been married. (See Missouri Revised Statute 452.402.1(1); In the Matter of C.F.R., 796 S.W.2d 423 (Missouri Appeals Southern Division).
In addition to filing a petition for grandparent visitation, or in lieu of so doing, a grandparent also has the option of requesting mediation. In mediation a neutral person, the mediator, assists the parties in reaching a mutually acceptable voluntary and consensual agreement in the best interest of the child as to issues of visitation. The mediator aids the parties in identifying the issues, reducing misunderstandings, clarifying priorities, exploring areas of common interest and finding points of agreement. An agreement reached by the parties is based on the decision of the parties and not the decision of the mediator. (see Missouri Revised Statute 452.403). The written request for mediation does not have to be written or filed by an attorney.
In many cases, grandparents could be a valuable part of a child’s life. However, the parents also have rights which can be defended in court. Hopefully, the grandparent/grandchild relationship can be maintained without the need for court intervention. If that is not possible, however, the court system may be able to help.
To reach the author, call Kathy Barker at (913) 438-4636
or send e-mail to Kathy@yourchild1st.com.
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This information is only for general educational purposes, and not for legal advice. Laws change, and their application may vary significantly depending on your circumstances. If you need legal advice, you must consult a licensed attorney. The choice of a lawyer is an important decision and should not be based solely upon advertisements.
© 2006 Scott Wasserman & Associates, LLC