From the Lawyer’s Desk: Judge, please can we visit with our grandchildren now?

By Paule, Camazine & Blumenthal, P.C. of Paule, Camazine & Blumenthal, P.C. posted in Grandparent/3rd Party on Friday, February 8, 2013.

The following was originally posted on Patch.com by Susan E. Block as part of a weekly series written by the attorneys of Paule, Camazine and Blumenthal, P.C. called From the Lawyer’s Desk. If you have any areas of the law that you would like discussed as part of that series, please contact us at fromthelawyersdesk@pcblawfirm.com.

Grandparents’ visitation rights are governed by statutes, i.e. laws that the Missouri legislature has passed.  In other words, just because it sounds fair that grandparents can go to court and get a judgment awarding them visits with their grandchildren, doesn’t make it so.  Here are a few questions I am often asked in my practice relating to grandparents’ rights:

Why aren’t grandparents’ relationships with their grandchildren better protected under the law?

First, courts have determined that parents’ rights are superior to grandparents’ rights.

If grandchildren are visiting with their grandparents, grandparents need to be alert to what the parents’ values are. Otherwise the parents may not let the grandparents visit with their grandkids or not as often as they have in the past.

One court case dealt with complaints by the parents that the grandparents would not follow the parents’ directives while the children were in the grandparents’ custody. The grandparents gave the kids soda, against the parents’ wishes and further used questionable language around the children, although their father had used the same language. To protect the children’s “health and well-being,” the parents limited visitation by the grandparents with the children to one 15-minute visit on Palm Sunday. Pretty harsh!

When the case was appealed, the grandparents were given one nine hour period of time, one Sunday a month. That was because the court thought that the parents were being unreasonable.

What happens to such rights when a child is adopted? Do the biological grandparents lose their entitlement to visits?

The law is not clear. A court “may” terminate such rights, but it is worth a meeting with an experienced family law lawyer to discuss the specific facts. The best interest of the child is always paramount. Some courts have ruled that when a child is adopted all legal relationships and rights and duties between such child and his natural parents cease; the rights of the biological grandparents are lost, too.

Grandparent visitation time must be minimally intrusive to the nuclear family.  This means that the court must look at how such visitation time would affect opportunities for the nuclear family to socialize and bond, children’s activity schedules, and whether the children are away at college.

What about grandparents of children living with married parents?

Sorry, no visitation.  Just not provided by the statute. Looks like “stick-together” parents’ rights trump grandparents ‘rights.

What about when the parents divorce?

There may be something you can file as a motion to modify however this should be discussed with an attorney.  This request for rights should not be made as an independent action. Probably even better to be proactive and intervene in the original dissolution of marriage action if you think grandparent visitation will be an issue post-dissolution.

How does the court decide how much time a grandparent should receive? 

The courts look to see if the grandparents were deeply involved in the grandkids’ lives. If so they may get more visitation than once-a-week grandparents.

A bit of sage wisdom that comes from experience in this area.

 Although it is easy to say and difficult to practice: grandparents should be seen, not heard, and should not to talk badly about their parents (even if they are bad parents). They need to heed the parents’ rules, such as about not smoking around the grandchildren, not swearing and not behaving in an intimidating manner.

Disclaimer

Susan E. Block

Susan E. Block

Susan Block returned to the practice of law after retiring as a Circuit Judge in 2004, with 25 years of judicial service. In her last judicial assignment she was appointed to serve as the Administrative Judge of the Family Court with the authority to manage the policies and practices of this division, while maintaining a full caseload of abuse, neglect, delinquency and adoption matters.

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