The divorce rate in America is running at around fifty percent these days. With so many marriages failing, it’s not surprising grandparents have become concerned about the welfare of their grandchildren when a divorce occurs. Depending on the relationship with your child’s spouse, you may be denied visitation rights should the spouse get full custody of the children. It may be that you consider your child’s spouse to be an unfit parent, for whatever reason; if the court awards the spouse full custody, you may feel you have legitimate concerns over the health and safety, not to mention the well-being, of your grand-kids. Know your rights concerning your grand-kids before the divorce finalizes, so you can take appropriate action.

Grand-parental Rights

The rights of a grandparent regarding their grand-kids are not constitutional in nature; that is, they are not guaranteed under the United States Constitution. All fifty states, however, have adopted some grand-parental rights; under certain circumstances grandparents may be awarded custody of the grandchildren, or may be awarded court-mandated visitation. These laws are fairly new; the statutes have been in place less than thirty-five years. The laws in each state differ; you must learn the statutes in your state of residence, and in the state of residence of your grand-kids. Consulting a family law attorney is your first step in learning what actions are feasible, both in your state and in your grand-kids’ state, if they live in a different area.

Federal law may impact your state rights; the Parental Kidnapping Prevention Act of 1980 requires all states to recognize and uphold custody agreements from other states. This means if you are awarded custody of your grand-kids in one state, and the ex-spouse of your child removes them to another, your custody rights are still valid. Conversely, if your child’s spouse is awarded full custody in one state, and you remove your grand-kids to another, the custodial rights of the ex-spouse are still paramount under the law. Federal legislation passes in 1998 also requires states to enforce court-awarded grandparent visitation rights; if you are awarded visitation in one state, the state where your grand-kids currently reside is required to enforce the order.

You must check the current status of grandparent rights in your state before taking any action; recently courts have been finding state laws regarding grandparent visitation are unconstitutional, in that they violate the due process rights of the parents to raise their children. Be sure of the laws in your state, and in the state where your grand-kids live, before initiating any legal actions.

The Best Interests of the Child

State statutes determining grandparent visitation and grandparent custody have different requirements. Know the conditions you must meet for either visitation or custody before you do anything. Some states have clearly defined factors determining the best interests of the child; some states have no lists, but have determined which factors they will consider in making the determination. All states are required to act in the best interests of the child, in awarding parental custody as well as grandparent visitation or grand-parental custody. States have exhibited a determined interest in keeping the nuclear family unit as intact as possible, so proving your grand-kids are with an unfit parent is an uphill battle at best.

Making a Decision

You must consider all the legal ramifications regarding visitation or custody rights over your grand-kids before you file. You must know the state statutes, in your state and theirs, if they live in a different area. You must know the current status of the statutes; if there is a pending court case challenging the statues, you need to know about it before you make an application under those statutes. Your best action is to find a competent family law attorney, one who is familiar with the laws in both states, if more than one is involved, or who has contacts in the second state that can handle your case. Knowledge is your best weapon; know what conditions you must meet to gain either visitation rights or full custody, and act accordingly.