David R. Hartwig, ESQ.
Attorney & Counselor At Law
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Grandparent visitation in Utah - an update.

This issue, grandparents' visitation, still appears to have conflict associated with it, despite an earlier post. I have even read some posts from other attorney sites that add to the confusion.

The Utah statute remains unchanged. A grandparent can file a petition for visitation if the petitioner's child has died, has been missing for an extended period of time, or is a non-custodial parent by way of a divorce or legal separation (in the case of a divorce or legal separation, the grandparent can even join the divorce or legal separation action).

But, over a year ago, the Utah Supreme Court issued a decision making it much more difficult for a grandparent to succeed with that petition. That case is Jones v. Jones.

In Jones, started with the fact that a parent's right to decide who has a right of visitation with her child is "fundamental" under the Due Process Clause of the U.S. Constitution. That means that the parent's right is protected, except in the limited circumstance in which an infringement of it is shown to be "narrowly tailored" to protect a "compelling governmental interest." That means that parents, as a general rule, have the final say in who has a right to interact with their children on a regular basis.

All of that Constitutional protection leads to the fact that the mere (but unquestioned) significance of the grandparental relationship will not be enough to override a parent's fundamental right to raise a child as the parent sees fit. Neither does a vague sense that the child would be better off with grandparents in the grandchild's life suffice. Grandparent visitation orders must be limited to the exceptional case where the failure to override the parent's wishes would cause substantial harm to the child.

That exceptional case is presumed to be the case where the grandparents' role is akin to that of a parent--where the grandparent has filled the role of "custodian or caregiver" or something similar. Then, a grandparent might succeed with the petition.

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David R. Hartwig, Esq.
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