You love your grandchildren and have spent a lot of quality time with them. You may have even cared for them while the parents worked, or when one or both parents had physical or personal problems they needed to deal with. This is not uncommon, as two earner households and the high cost of daycare often puts grandparents in the role of caretaker.
But what happens if the parents separate or divorce, or one of them is incapacitated or passes away? Unfortunately, sometimes one or both parents try to thwart grandparent visitation that was commonplace before. Confused and maybe angry, the grandparents may want to seek to regain this visitation or even file for custody of the child.
Last year’s Utah Supreme Court decision, Jones v. Jones, 359 P.3d 603 (Utah 2015), has made it much more difficult to prevail. In brief, the ruling in Jones upholds a parent's fundamental right to make all decisions involving their child. Unless there are very compelling state interests to interfere with this right of the parents, such as neglect and abuse or prior grandparent custody of the child, the grandparents will face a big challenge in their quest to continue the care of or visitation with their grandchildren. The grandparents must now prove legally valid and sufficient grounds, in the child’s best interests, to overrule a competent parent's wishes involving the care, custody, and visitation of their own child. A claim that visitation has been denied or restricted without good cause may not be a very effective argument in light of Jones v. Jones. This claim alone will not normally prove to the judge that it would be in the child’s and the state’s best interests to grant visitation or custody to them, no matter how caring and loving they have been.
To have a chance to obtain a court order for mandated visitation or to obtain custody, a grandparent must now normally prove that preventing the visitation with the child, or denying custody to the grandparents, would very likely cause physical or emotional harm, a high bar to meet. If the parents can be proven unfit, or if the grandparents had a prior custodial relationship or were regularly caring for the child, it still may be possible to regain a relationship with your beloved grandchild.