By Tamara Hoffstatter
Children of divorce have enough disappointment just facing the fact that their mom and dad don’t love each other anymore. It can be devastating coupled with the loss of not seeing their grandparents.
So what visitation rights do grandparents have after divorce?
The Importance of Grandparents
Some of the best memories I have as a child are the times I spent with my grandparents.
As an adult, I still cherish the stories that they told me about how they met as young adults during the depression at the local Piggly Wiggly, courted by telegram and letter while my grandpa was fighting in World War II, and were married five months after my grandpa returned from the war because they knew that they were not meant to be with anyone else.
Married for over 65 years, they were a testament to all that can be right in a marriage.
As a child of divorce, and of two parents who meant well but absolutely failed to shield me from their respective animosities, my grandparents’ commitment to each other and the family and life that they built together, kept me from falling into total pessimism about love, marriage, and happiness.
And, just as a side note, as a kid it was just soooo much fun going over to grandma and grandpa’s; being with them brightened my days.
Grandparent Visitation Rights
The adjustment to a new life for children in two separate homes can be difficult. Many states have statutes that provide for grandparent visitation rights.
In New Mexico where I practice, for example, grandparents may be awarded visitation during a divorce case.
Upon the filing of a petition to obtain those rights in an active divorce case, the judge will decide what visitation, if any, is appropriate based on the “best interests of the children” standard.
That standard is assessed by looking at several factors that examine, for the most part, the prior and present relationship between the children and the grandparents, and between the parents and the grandparents.
Consideration is also given to whether any prior convictions exist for abuse and neglect, and what, if any, time-sharing arrangements are currently in place.
The statute that provides for grandparent visitation demands that the visitation not conflict with the child’s education or the established custody and visitation plan that was crafted for the parents during the divorce.
Additionally, grandparent visitation cannot occur during the other parent’s time with the children. In other words, if the maternal grandparents seek visitation with the children, the visitation cannot occur during the father’s parenting time. Similarly, paternal grandparents cannot exercise visitation during a mother’s parenting time.
Fortunately, the legislature has recognized that there are occasions other than divorce where the relationship between children and grandparents could be preserved.
For example, grandparents can petition for visitation if either or both parents are deceased.
Also, grandparents may petition for visitation with a grandchild who once resided with the grandparent for three months or more if the child is less than six years old at the beginning of the residence, or a period of six months or more if the child is six years of age or older. This provision obviously acknowledges the many occasions when a grandparent plays a significant if not the solitary role in providing care and custody for the children.
Conclusion
If your children’s grandparents were playing a role in the children’s lives during the marriage, and a positive, healthy, and loving relationship between grandparent and grandchild was present, then it really doesn’t matter if you live in a state that formally provides these grandparent visitation rights.
Parents can make the commitment to preserve the relationship. Children need stability, and in a time of chaos surrounding divorce, a continuing relationship with grandma and grandpa might be just the thing that helps your children through that chaos.
Thankfully, my parents did preserve that relationship on both sides, and I am sure that it made all the difference in how I was able to cope with the divorce.
Lawyer Referral:
To arrange an initial consultation to discuss divorce rights for men with a Cordell & Cordell attorney, including New Mexico Divorce Attorney Tamara Hoffstatter, contact Cordell & Cordell.
I have a situation where my daughter has lost custody of my grandson (11 yrs. old) My Grandson’s father has passed away. My daughter had a DCF case (neglect) against her in CT. She called my Grandson’s Paternal Grandfather & asked him to pick up my grandson. Paternal Grandpa lives in NC. My husband & I have Guardianship over the other 3 children. We live in FL. My question would be if my husband & I could file for Guardianship or Visitation? So far, we are only allowed by the Paternal Grandpa to talk once a month to our Grandson. We feel it is important to keep all of the siblings together & we love all of them! Any suggestions would be appreciated. Thank you!
I would love to be able to see my granddaughter but my ex daughter in law added in the divorce decree that it would only be as a supervised visit. She named herself and my husband as supervisors. My husband passed away 5 months ago and my granddaughter lives in Florida 🙁
Attorney (Indiana)
The author was indeed fortunate that her parents preserved her relationship with her grandparents — and that she was not, instead, subjected to the purgatory of grandparent visitation litigation. The resources that (perhaps) went toward her education would more likely have gone for legal fees; the strain she could already feel between her divorced parents would have been equaled or exceeded by the tension between the litigating grandparent(s) and her custodial parent. These lawsuits are a tragically counterproductive way to address unfortunate rifts in extended families.