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My Son is Incarcerated, Do I have Grand Parents Rights?

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Missing a family member is not the only loss but missing their extended family as a result of incarceration.  We received a letter from an extremely frustrated Grandma who has not seen her grandchildren since her son’s incarceration.  In their situation her son is required to pay child support which the grand mother has continued to maintain on her son’s behalf. Does she have any visitation or Grand Parent’s rights? We took a look into her case and found the following:

 Unfortunately, most states don’t have legislation the includes Grand Parent’s Rights unless extenuating circumstances apply and/or there’s an existing agreement between both parents which includes grand parent rights.   We hope this information will be helpful for anyone experiencing this type of loss and/or facing incarceration.  

Just because he’s gone doesn’t mean Grand Ma is too!

The idea of grandparents’ rights often stems from an assertion of rights by grandparents, seeking increased visitation with their grandchildren. In most states, the concept of grandparents’ rights does not exist, as it is a parent’s decision to determine whether or not to allow their parents to have a meaningful relationship, including visitation, with their children. Events that generally give rise to a discussion of grandparents’ rights include: a dispute between the grandparent and his/her child, the death of the grandparent’s adult child, or the divorce of a grandparent’s child and his/her spouse.

In Disputes With Parents, What Are Grandparents’ Rights?

In some courts, if a child has lived with a grandparent for a determined amount of time, the court may grant that grandparent visitation rights. In addition, if a custody dispute is pursued and the court determines that it is in the best interest of the child to reside with a grandparent, such an arrangement will be ordered and established. However, if the grandparent failed to exercise parental rights regarding his or her own child, it may be particularly difficult to secure visitation rights with that child’s children.

When Death Occurs, What are Grandparents’ Rights?

Some states will order visitation to a grandparent whose adult child has died, leaving behind surviving children. The benefit of allowing grandparents to remain in a child’s life after death may be to remind the child of what he or she has lost, or to provide some stability in the child’s life during a period of grief and confusion.

When Divorce Occurs, What Are Grandparents’ Rights?

Generally, after a separation or divorce, a grandparent does not need to assert his or her rights, so long as the parent to whom the grandparent is related has custody rights, and the grandparent has a good working relationship with that parent. In such cases, the grandparents are generally able to visit the grandchild when he or she is in the custody of that parent. There may be an issue, though, if the grandparent’s adult child is denied custodial rights and the grandparent would like to establish visits with the grandchild. However, as long as the grandparent has developed a bond with the grandchild, and no harm has been done to the child, the court may grant reasonable visitation rights to the grandparent.

The Burden Upon Grandparents in Court Proceedings

Grandparents will have to prove that visitation or custody is in the best interest of the child. However, it will be difficult for a grandparent to assert his or her rights to a grandchild in the absence of an actual change in the parent-child relationship, as in the examples mentioned above. In addition, the court will expect proof that the grandparent has maintained a good relationship with the child; and if the child is old enough and mature enough, the court might like to hear from the child on his or her preference regarding visits with the grandparent, as well. In any case, grandparents should also be careful not use their time with a grandchild to undermine the child’s parents or to speak against either parent.

Grandparents’ rights generally vary by state. Some states have laws that are more accommodating to grandparents than other states. Grandparents, seeking to assert their rights, should first check the specific laws of their states.

Thanks for sending in your request, I encourage you to keep them coming. You can submit your questions to onimcknight@stateshopsny.com. Also join us on Facebook at www.facebook.com/stateshopsny

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