Ask A Lawyer: Does A Grandparent Have Visitation Rights?

grandparents with grandchild

During custody battles, many family members may wonder, “Does a grandparent have visitation rights?” As is often the case with legal questions, the answer is, “It depends.” When a court makes legal decisions regarding a child, the judge always seeks to do whatever is in the best interest of that child. You might think this inherently means ordering a relationship with the grandparents, but not all grandparents have a legal right to visit their grandchildren.

How Grandparents Can Get Visitation Rights

Inherently, grandparents do not have a right to see their grandchild. In most cases, parents ultimately have the final say about who is in their child’s life. That said, a grandparent can ask the court for visitation rights in some cases.

Visitation is possible if you meet a few conditions:

  1. There is an open child custody or visitation case between the parents, such as during a divorce. Grandparents can ask the court for visitation at this time, but once the parents decide on an arrangement, grandparents cannot ask for visitation.
  2. The grandparent(s) have an established, significant relationship with the child.
  3. It is in the best interest of the child to continue the relationship with the grandparents.

Additionally, grandparents cannot seek visitation if the child is being adopted outside of the family. If both biological parents terminate their rights and the child is adopted to unrelated parents, a biological grandparent does not have the right for visitation.

Grandparent Visitation Versus Custody

Keep in mind that grandparent visitation and grandparent custody are two different things. As the name implies, visitation simply means that you can “visit” with the child. A parent might voluntarily allow you to see the child, as is the case with many families. However, the court also recognizes that parents have the right to dictate who sees their child. This most often gets messy during a divorce, when one parent is seeking physical custody. Having a good family law expert on your side can help you get the best visitation outcome possible as a grandparent.

Custody isn’t just seeing a child. Instead, it is being responsible for a child. In North Carolina, there are two types of child custody:

  1. Physical custody – where a child lives and who provides care for the child
  2. Legal custody – who gets to make decisions about a child’s education, healthcare, religion, etc.

Grandparents do have a right to intervene if there has been substantial change in circumstances and they have a significant relationship with the children to seek custody or visitation. As a grandparent, you can seek custody of a grandchild if you believe they are being abused, neglected, or abandoned. You do not need to wait for an open case between the parents, like with visitation. If you want the child to live with you and are willing to take over their care, you can seek custody at any time. That said, courts typically consider the wishes of the parents first. So, in most cases, grandparents won’t receive custody of a child except in cases of abuse, neglect, or abandonment.

Custody Versus Grandchild Adoption

Having custody of your grandchild doesn’t mean that you’ve adopted them. Physical custody simply means that they live with you for at least 123 nights per year, and legal custody means you have the right to make important decisions about the child, such as where they will go to school.

If you have physical custody of your grandchild, you may wish to seek adoption. Adoption can be beneficial for a number of reasons:

  • Adoption can make the grandchild feel more secure. In general, it gives children a sense of belonging.
  • You can name a guardian for the child in your will, to provide stability in the case of your death.
  • In some cases, adoption can make it easier for you to deal with things like health insurance, education, state/federal benefits, etc. Usually, you can provide these things if you have legal custody, but adoption can make the process easier in some cases.
  • Adoption can give you peace of mind. If a parent is in and out of the child’s life, it can feel stressful never knowing if they are going to petition the court to regain custody. With adoption, you are now responsible for the child long-term.

Keep in mind, a grandparent can only adopt a grandchild if the parents’ parental rights have been terminated. Termination of parental rights cannot be done by agreement of the parents.  It must be court-ordered upon a finding that (1) the parents are unfit, have failed to provide support for the children, or have had no contact with the children and (2) it is in the best interest of the children to be adopted by a grandparent.

Regardless of if you adopt, caring for a grandchild can be extremely rewarding. They get to maintain a bond with their biological family, even if their biological parents can’t care for them. Of course, adopting a grandchild also has its challenges, as are outlined in this study from the American Academy of Pediatrics. The good news: if adoption is the right route for you, our legal team here at Morgenstern & Associates can help. We have experience not only with child custody cases, but also with all areas of family law, including grandparent adoptions.

FAQs About Grandparent Visitation and Adoption

If you’re wondering, “does a grandparent have visitation rights?” we would love to talk to you more about your specific situation. Unfortunately, every case is different, so it is impossible to give you advice online about your family. However, here are a few frequently asked questions we hear about grandparent visitation, along with some general information.

Does a grandparent have visitation rights during an adoption?

If the adoption is with unrelated parents, a grandparent typically does not have visitation rights. On the other hand, if a family member (such as an aunt/uncle) is adopting the child, a grandparent may be able to get court-ordered visitation rights. It depends on the specifics of the adoption.

Can grandparents adopt a child if the parents do not voluntarily terminate their rights?

Yes, if a judge orders it. Adoptions are generally easier if a parent is voluntarily terminating their parental rights. In the case of neglect, abuse, or abandonment, however, a judge might terminate the parents’ rights.

How can I learn more about adopting my grandchild?

We would love to speak with you about your situation. You can click here to learn more about us, send us an email, or chat with a representative of our team.