Grandparents Rights in Divorce Proceedings

Grandparents Rights in Divorce Proceedings

Interaction with grandparents is an important aspect of a child's life. Unfortunately, regular visits with grandparents can be uprooted when a couple goes through a divorce. Yet, what happens if a child wants to continue a close relationship with a grandparent during and after a divorce? What if the maternal or paternal grandparents want to assert visitation rights with the child? These issues are covered in the area of law known as grandparents rights.

Utah's Presumption in Favor of Parents

Under Utah law the courts will presume that a parent's decision regarding grandparent visitation is valid. In essence, the court presumes that the parent's decision will promote the child's "best interests." Many people take issue with this because a parent's decision can be affected by the anger, depression or spitefulness usually experienced in the divorce process. In order to accommodate for this the law affords grandparents an opportunity to overcome the presumption.

A Grandparent Challenge to the Presumption

As explained above the presumption for parents in 30-5-2 of the Utah Code is rebuttable. This means that grandparents can petition the court for visitation rights. In order to prove that visitation is beneficial for the child the grandparents (or petitioners) need to provide evidence to convince the court to override the rebuttable presumption for parents. Some of the factors considered by the court include:

  • The character and fitness of the grandparent.
  • Whether the parent's denial of visits is reasonable.
  • The character of the parent.
  • Whether the parent (child of petitioner) has died or lost custody due to divorce/separation.
  • Whether the parent (child of petitioner) is absent from the child's life.
  • If the best interests of the child will be served by visitation.

The court may also consider whether the grandchild and grandparent had a substantial relationship prior to the divorce and the impact of breaking the emotional bond. The court may use its power under subsection four of Title 30, Chapter 5, Section 2 to obtain a statement from the child regarding whether he or she desires visitation. The court can use the child's account in making a decision on the matter.

Balancing the Rights of the Parties

The court is hesitant to grant grandparent visitation if it affects the parent's rights. Traditionally, parents have enjoyed a fundamental right to control the upbringing of their children. This doctrine came into question during a 2000 U.S. Supreme Court case. In this case the Supreme Court decided to leave the issue to the discretion of the individual states.

However, Utah seems to adhere to the traditional standard as seen in the 2015 case Jones v. Jones, 2015 UT 84 (Utah 2015). In this case the Utah supreme court invalidated a grandparent visitation order that was issued against the will of the parent. The court held that the visitation order was not narrowly drawn and did not promote a "compelling government interest." Essentially, the court set a precedent that visitation by grandparents will not be granted over the objection of the custodial parent unless there is a substantial risk of harm to the child.

If you need help with grandparent custody or grandparent visitation it is best to consult an experienced lawyer such as those at Spencer and Collier, LLC.

Tags: divorce, grandparent custody, child visitation, grandparents

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