David R. Hartwig, ESQ.
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Grandparents' Rights to Visitation (parent-time)

Grandparents Rights to Visitation

 

            Grandparents visitation: Grandparents have a right to petition a district court to request visitation with grandchildren; or, they can join a pending divorce, or other court case that involves custody and visitation with the grandchildren. The statute is ยง 30-5-2, Utah Code  (http://le.utah.gov/xcode/Title30/Chapter5/30-5-S2.html), It is complex and detailed; its provisions must be reviewed in detail, and complied with in any petition or motion for joinder in a pending action.

 

            The statute acknowledges that there is a presumption that[1] a parent gets to decide whether grandparents can have visitation. It also states that the court may override the parent's decision based on relevant factors such as the following:

 

  • The grandparent is a fit and proper person to have visitation.

  • Visitation with the grandchild has been unreasonably limited or denied.

  • The parent is unfit or incompetent.

  • The grandparent has acted as the grandchild's custodian, caregiver, or has a substantial relationship with the child, and the loss of that relationship is likely to cause harm to the child.

  • The grandparent's child, who is a parent of the grandchild, has died or become a non-custodial parent by way of a divorce or legal separation.

 

In September 2015, the Utah Supreme Court significantly restricted the rights granted by statute. That case is Jones v. Jones. While reviewing constitutional standards, public policy issues, and fundament familial rights, the Utah Supreme Court held that grandparents have a burden to show that the visitation order is necessary to prevent substantial harm to the grandchild.

 

            Jones was a divorce case. The parties divorced when the child was around fourteen months old. When the child was around twenty-two months old, the child's father died. Before then the father lived with his parents (the grandparents) and the child spent several days a week in the grandparent's home. When not at their full-time jobs, the grandparents took part in the daily care of the child.

 

            After the father's death the relationship deteriorated and the mother refused the grandparents visitation, The grandparents wanted an every other weekend visit, but did initially work with the mother who allowed phone calls and occasional day visits. Things did not work out and the grandparents sued for visitation.

 

            The trial took two days and included testimony from an expert witness who was hired to determine whether it was in the child's best interests to have the grandparent visitation. Although the expert witness testified that visitation with the grandparents would be in the child's best interests, the expert was unable to describe any harm that the child would experience by not having those visits.

 

            That lack of harm is the focal point of the Utah Supreme Court's decision. The harm to the child, however "harm" is defined, has to be compelling enough to override a parent's decision to refuse visitation to a grandparent. It appears that all of the other factors our legislature listed in statute are insufficient unless someone can identify a requisite harm. Child Custody and Visitation

 



[1] The statute does not give any rights, only a presumption of a right.

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