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Do grandparents have a right to visit their grandchildren?

Grandparents can play a unique role in their grandchildren’s lives. Some may serve as caretakers or role models, others as teachers, sharing the family values and history with future generations. When healthy relationships bridge generations, all can benefit. Unfortunately, the relationship that produced the grandchildren may take an unexpected turn. If the parents of the grandchildren divorce or if one parent dies, the connection between the grandchild and grandparent may change. This can leave grandparents to wonder whether they have a legal right to see their grandchildren.

What happens to a grandparent’s ability to see their grandchildren when parents’ divorce or if one dies?

Although the answer will depend on the details of each individual situation, Indiana state law generally provides grandparents the right to seek visitation. This means they can often have a court hear their case.

This right is available if one of the following three elements is present:

  • The child’s parent has died;
  • The marriage of the child’s parents was dissolved in Indiana; or
  • The child was born out of wedlock

It is also important to note that courts generally require the father establish paternity if the child was born out of wedlock for paternal grandparents to move forward with visitation rights.

How do these laws work in real life?

In a recent example, Shelton v. Hayes, a grandfather petitioned the court for time with his grandchild. In this case, the mother, father, and child had lived with the grandfather for about five years. After the grandfather’s son, the father of the child, died, the mother eventually remarried. The mother and grandfather entered an agreement allowing the grandfather four visits with the child per month as well as one weekend per month. The grandfather claims the mother did not meet her end of the agreement and the mother argued that a change in circumstance meant visitation was no longer in the child’s best interest.

Upon review, the court found that the circumstances had not changed enough to support the mother’s argument. Instead, the court found the mother had violated her obligations under the agreement with the grandfather, held her in contempt and awarded the grandfather “make-up visitation” time.

The issue moved forward through the lower cases and up to appeal. Upon review, the appellate court pointed out some errors in the way this case proceeded. First, the lower court should not have allowed the grandparent to request a visitation evaluation or guardian ad litem (GAL). Instead, the appellate court agreed with the parent’s argument that it was more appropriate to conduct brief interviews in the court chambers. Because the lower court did appoint a GAL, the appellate court sent the issue back to the lower courts and instructed it to review other evidence to come up with its determination. This could include an interview with the child in the court chambers.

In this case, we see that the courts respect grandparent rights to see their grandchildren, but that these rights have boundaries. Anyone in a similar situation is wise to seek legal counsel to determine how these boundaries apply to their case.