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Grandparent visitation in Utah – an update.

On Behalf of | Jan 5, 2017 | Grandparents

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.

I am David R. Hartwig, Esq., a Salt Lake City attorney with extensive experience helping parents resolve simple or high-conflict custody issues reaching arrangements that work for children and parents. Child custody involves parent-time and visitation schedules, and can affect support. I help in all of these areas, providing comprehensive service clients need to achieve their custody goals.

Factors In Child Custody Decisions

As an experienced Utah child custody lawyer, I understand that custody cases may become a contentious issue even years after an order is finalized. The trend in Utah toward joint custody often creates messy, unworkable situations, which ultimately lead to enforcement issues when parents do not abide by their custody orders.

The best interests of the child must be considered, including:

• Whether joint legal or physical custody will benefit the child’s physical, psychological and emotional needs, or the child’s development

• The parents’ ability to give first priority to the child’s welfare, and reach shared decisions in the child’s best interest

• Whether each parent is capable of encouraging and accepting a positive relationship between the child and the other parent

• Whether both parents participated in raising the child before the divorce

• The distance between the parents’ homes

• The parents’ maturity and their willingness and ability to protect the child from conflict that may arise between the parents

• The parents’ ability to cooperate with each other and make decisions jointly

• Any history of, or potential for, child abuse, spouse abuse, or kidnapping

• Any other factors the court finds relevant

Despite the complicated and sensitive nature of custody matters, I have helped many clients successfully establish custody orders.

Get Help With Your Child Custody Issue

If you have a child custody issue, please contact me, David R. Hartwig, Esq. I am an experienced Salt Lake City custody lawyer dedicated to helping clients resolve complex custody issues and implement necessary custody orders. For high-conflict cases, I am also one of the few Utah child custody modification attorneys trained as a Special Master for ongoing dispute resolution.

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