After the decision taken by the US Supreme Court in Troxel case, visitation and child custody grandparents rights are being determined based on the best interests of the grandchildren. Factors such as the pre-existing relationship between the child and the grandparent and the reason for the parents' objection often determine the level of visitation rights and child custody for grandparents seeking court ordered times to be with their grandchildren.
Today, all states have statues authorizing a court to award visitation to a grandparent under certain circumstances. For example, California requires two prerequisite findings before granting visitation rights to a grandparent. First, there must be a preexisting relationship and bond between the grandparent and the grandchild and second, the requested visitation must be in the best interest of the child. If the prerequisites are found, the court must also balance the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority. Family Code § 3103 (a) (2).
Different from that of California, Virginia has a broader law that allows child custody grandparents visitation rights to be petitioned in the court even when the parents and children are in an intact household. Virginia's Supreme Court rejected a challenge to its third party visitation law, on the grounds that it interfered with a parent's fundamental constitutional right to autonomy in raising his/her child. The court held that the statute would be constitutional even as applied to intact families if visitation were ordered even over the objection of a parent on a showing that the child would be harmed without such visitation (Williams vs. Williams).
Virginia is not in the majority. Most state courts do not permit a grandparent to petition the court for grandparent visitation rights if the family is still intact. The intent of this is to preserve the parents constitutional right of privacy and autonomy in raising his/her child. Illinois recently upheld the constitutionality of its grandparent visitation law which allows grandparent rights to visitation only when the family unit breaks down and is not intact. The statute allowing grandparent visitation only for non-intact families was not a violation of the equal protection clause of the constitution (West vs. West).
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