Atticus Legal Group, LLC represents both grandparents and parents. Why is this? Can an attorney who represented a grandparent, requesting grandparent rights for their client, be able to adequately argue for a different parent who is denying grandparent visitation rights?
It is all about the facts of the case. Parents or grandparents undergoing litigation are more likely to believe "grandparent's visitation statutes" should be a zero-sum game. This is not so. A grandparent seeking rights to a child she raised from birth can, and probably should, have more rights than a grandparent who simply wants rights to a child because of his/her status as a "grandparent."
Until July of 2013, Utah’s grandparent and third party visitation statutes were well-established in family law. Between Utah Code § 30-5-2 and the Campbell and Troxel cases, grandparents could frequently petition the court for visitation rights (so long as they provided certain evidence rebutting the presumption that the parents of a minor child were limiting visitation contrary to the best interests of the minor child).
Under Utah Code § 30-5-2, a grandparent could argue that he/she should receive visitation rights with the minor child if:
- the petitioner is a fit and proper person to have visitation with the grandchild;
- visitation with the grandchild has been denied or unreasonably limited;
- the parent is unfit or incompetent;
- the petitioner has acted as the grandchild's custodian or caregiver, or otherwise has had a substantial relationship with the grandchild, and the loss or cessation of that relationship is likely to cause harm to the grandchild;
- the petitioner's child, who is a parent of the grandchild, has died, or has become a noncustodial parent through divorce or legal separation;
- the petitioner's child, who is a parent of the grandchild, has been missing for an extended period of time; or
- visitation is in the best interest of the grandchild.
Given a grandparent's visitation case impacts the rights of grandparents, how does the Jones v. Jones case impact your case?
With the emergence of the Jones v. Jones decision in July of 2013, for a grandparent to satisfy the constitutional standards of Utah Code § 30-3-52 the grandparent must demonstrate that the state’s interest in ordering visitation is compelling.
So, if a grandparent argues that she should receive parent-time because she is a fit and proper person to have visitation with the grandchild? By itself, this is not enough to allow the state to award visitation.
So, if a grandparent argues that visitation with the grandchild has been denied or unreasonably limited? This is not enough to allow the state to award visitation.
We can go on and on, but essentially, meeting the written elements of the grandparent's visitation statute will only lead to a dismissal of a grandparent's visitation case.How Might a Grandparent Obtain Visitation Rights Following the Jones Decision?
Following the Jones decision, only two factors under Utah Code § 30-5-2 may, if argued and supported with clear and convincing evidence (the burden is on the grandparents), be enough to warrant visitation. Both factors relate to the effort to prevent potential harm to a minor child caused by limitations on grandparent visitation.
While the Jones court does not state that a grandparent will receive visitation if the parent(s) are unfit or incompetent to raise the child, because of the harm that a child may experience while under the care of the parent (rather than the grandparent), Jones heavily implies that such evidence of harm may be sufficient to allow the state to grant visitation rights to the grandparent.
More likely, if a grandparent argues that she has acted as the grandchild's custodian or caregiver, or has otherwise had a substantial relationship with the grandchild, and that the loss or cessation of that relationship is likely to cause harm to the grandchild, the Jones court once again heavily implies that evidence of this harm may be sufficient to grant grandparent’s visitation rights.How Important is a Showing of Harm to a Minor Child in Awarding Visitation?
While the grandparent visitation statute “does not require a showing of harm to the grandchild,” it is listed as one of factors the court may consider relevant in determining whether the grandparent has rebutted the presumption that the parent's decision with regard to grandparent visitation is in the grandchild's best interest. Indeed, it seems to be vital to establishing the state’s compelling interest necessary to award grandparent visitation.
The Jones court ruled that, even when it was either unchallenged or supported by clear and convincing evidence that “father died, grandparent’s and mother are fit, mother unreasonably limited grandparent’s visitation, and visitation (with the grandparents) is in the child’s best interest,” without actual evidence that the child was harmed by missed visitation with her grandparents (and ‘understandable sadness resulting from losing a family member and missing her grandparents’ would be insufficient), these facts were insufficient to justify state interference.
Whether you are a grandparent seeking visitation with a child in which you have a special bond, or you are a parent who is being intimidated by a grandparent who simply wants to make decisions contrary to your desires, call us! Our consultation can help you determine your next steps.