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Can a Court order grandparent visitation?

What rights do parents have against grandparent visitation?

Do grandparents have a guaranteed right to have visitation with their grandchildren?

Who has the responsibility of proving that a grandparent should have visitation with their grandchild?

What if one or both parents oppose grandparent visitation?

How does a grandparent get grandparent visitation?

Who is classified as a “grandparent?”

Who pays grandparent visitation proceedings?

How much grandparent visitation is normally awarded to a grandparent?

Can a grandparent get custody of their grandchild?


Can a Court order grandparent visitation?

Yes. Grandparents can get visits in Kansas by proving that (1) they have a substantial relationship with their grandchildren, and (2) visits would be in the best interest of their grandchildren. Read Kansas Statute number 38-129.
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What rights do parents have against grandparent visitation?

Parents have a constitutional right to raise their own children.

In Troxille v. Granville (2000) the United States Supreme Court held a Washington grandparent visitation statute unconstitutional. In part the court held “…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.2d 61 (2001).

In Skov v. Wicker (2001) the Kansas Supreme Court held Kansas grandparent visitation statutes were constitutional. The Court distinguished Kansas grandparent visitation statutes from the Washington grandparent visitation statute. The Court held that the limitations imposed on grandparent visitation by K.S.A. 38-129(a) remedies the issue of constitutionality. Skov v. Wicker. 272 Kan. 240 (2001).
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Do grandparents have a guaranteed right to have visitation with their grandchildren?

No. Grandparents have no natural or common-law rights to grandchildren. Grandparent visitation rights are purely a province of statute. Browning v. Tarwater, 215 Kan. 501, 504 524, P.2d 1135 (1974).
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Who has the responsibility of proving that a grandparent should have visitation with their grandchild?

Grandparents must prove that requested visitation is in the child's best interest and the substantial relationship exists with the grandchildren. Read Kansas Statute number 38-129(a).
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What if one or both parents oppose grandparent visitation?

The court must give special weight to the fundamental presumption that a fit parent will act in the best interest of his or her child. Skov v. Wicker, 272 Kan. 240 (2001). The court however is not required to make a finding of parental unfitness before awarding grandparent visitation. Degraeve v. Holm, 30 Kan.App.2d 865, 50 P.3d 509 (2002). A parent's determination of what is in the child's best interests is not always absolute. Id.

The Court should not substitute its judgment for the parent's, absent a finding of unreasonableness. In re T.A., 30 Kan. App. 2d 38, 38 P.3d 140 (2001). “Our courts have not defined 'unreasonable,' nor have they determined that a fit parent's desire to cut off visitation with a grandparent is unreasonable.” SRS v. Davison, 53 P.3d 1254 (2002).
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How does a grandparent get grandparent visitation?

A grandparent can request grandparent visitation in one of two ways:

(1) by filing a motion to intervene in a divorce case under K.S.A. 60-1616(b) in the county in which the divorce was filed; or,

(2) by filing a Petition for Grandparent visitation under K.S.A. 38-129(a) in the county in which the grandchild(ren) resides.
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Who is classified as a “grandparent?”

The term “grandparent” as used in K.S.A. 60-1616(b) and K.S.A. 38-129(a) is plain and unambiguous. The legislature only intended to authorize visitation to the parent of the child's father or mother. SRS v. Davison, 53 P.3d 1254 (2002).
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Who pays grandparent visitation proceedings?

Grandparents usually pay the entire costs of the proceedings. Grandparents even pay the opposing side's attorney fees.

Pursuant to K.S.A. 38-131, the parent must be awarded costs and reasonable attorney fees unless the court determines that justice and equity require otherwise.

Grandparents might not have to pay the parents' attorney fees if the court finds that the parent is vindictive. Degraeve v. Holm, 30 Kan.App.2d 865, 50 P.3d 509 (2002).
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How much grandparent visitation is normally awarded to a grandparent?

There is no statutory authority to support what is or is not reasonable grandparent visitation. The amount of visits will depend on the facts in your case.
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Can a grandparent get custody of their grandchild?
Yes, a grandparent can get custody of a grandchild. However, a grandparent does not have a right to custody of his/ her grandchild.

To get custody of a grandchild, a grandparent usually must prove that the grandchild is a child in need of care. For example, a grandchild might be a “child in need of care” if the child is abused, neglected or abandoned.

Grandparents and other persons can get custody of a child if each parent is found to be unfit. K.S.A. 38-1583. Temporary custody can be awarded if there is probable cause to believe that the child is a child in need of care. Read Kansas Statute number 60-1610(a)(5)(C).

The court can order the child to reside with someone other than the parents if neither parent is fit to have residency. Read Kansas Statute number 60-1610(a)(5)(C).

To obtain or oppose grandparents visits or custody, please call Scott Wasserman & Associates, LLC at (913) 438-4636, or to e-mail us NOW online, click here or refer to the "Ask Scott a Question" button on the upper left menu bar.


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