Enforcing Grandparents' Rights: What You Need to Know

Grandparents often seek court-ordered visitation or custody when their adult child refuses to allow them to visit with or raise their grandchildren. If a court rendered an order for you, the grandparent, either custody or visitation, and you're prevented from exercising those rights, you have recourse to enforce the order.

How to get grandparent custody rights

Custody rights for grandparents vary by state. In all cases, the children's best interests are paramount. Some states, such as Florida, don't allow for grandparent custody except in rare instances, such as where another state made the order or if the parent gives permission for temporary custody or concurrent custody, which is when the grandparent and parent have custody together.

In New York and California, adoption doesn't automatically prevent grandparent visitation, so a grandparent can still petition for visitation after adoption.

State custody and visitation laws

Some states have no statutes for grandparent custody or visitation. In many states, there is a limited set of circumstances in which a grandparent can obtain custody. Usually, one of the following must apply:

• One or both parents have died.
• One or both parents are unfit, often due to neglecting the child, persistent alcohol use, drug use, or a serious physical or mental health illness.
• The parents have either split up (if unmarried) or divorced.
• Child protective services has an open case against the parents and need to place the child with someone, preferably a relative.
• Both parents are incarcerated.
• The parents named the grandparents as guardians in their wills.

The following may help grandparents get custody if any of these are also true:

• The child has a strong bond with the grandparents.
• The child lived with the grandparents for a while.
• The child wants to live with the grandparents and is mature enough to tell the judge.
• The parents both agree that the child should live with their grandparents.

In addition to the above, custody must always be in the child's best interests, or the court will deny the grandparent custody.

Visitation is often against the wishes of the parent when there is a feud between grandparent and parent. In many states, to override refusal to allow visitation, some of the above-listed scenarios also must occur. As with custody, the child's best interests guide visitation cases.

How to enforce grandparents' rights

When grandparents have a court order that permits visitation or custody, and the parents refuse to cooperate, grandparents have additional rights in many states. The grandparents must often take their adult child to court, but if there's an order, many courts will enforce the order.

There are several ways to enforce such an order. Grandparents often do one or more of the following:

• File a contempt motion or petition.
• File an enforcement petition.
• File a violation petition in some states, such as New York.
• Call the police.
• Notify their attorney.
• As a last resort, have the attorney write a demand letter telling the parents to comply immediately. However, this tactic can backfire, as sometimes parents relocate with the children in an attempt to avoid compliance.

How to bring an enforcement action

There are several steps to bringing an enforcement action. Most importantly, you need a family attorney experienced in grandparent visitation or custody cases, as not every family attorney has done them. Due to the complexity in such cases, it is not recommended that you represent yourself, as self-represented individuals often end up losing.

The steps to enforcement are generally the following:

• Decide what action you're taking: filing a contempt, enforcement, or violation petition or motion.
• Fill out the proper paperwork. Your attorney should prepare the papers for you.
• File the papers with the court clerk.
• Have the sheriff or process server serve the petition or motion. Some states allow service by mail.
• Appear at the court date.
• Prepare to settle the case, mediate, or go to trial.
• Wait for the judge's or mediator's decision.

What happens if parents violate grandparent's rights

Violation of a legal court order can have serious consequences. Contempt actions can require jail time or fines. Parents who continually disobey court orders can have a criminal action started against them.

If parents relocate out of state to avoid the order, the court or attorney will locate them, and the consequences will likely be more drastic. Parents can lose custody rights if they willfully disobey a court order for custody or visitation. The court can issue a warrant for their arrest and also require parents to pay the grandparents' court costs and legal fees.

While each state is different, grandparents generally can file a contempt, enforcement, or violation petition or motion against their adult children for failure to obey a court order for custody or visitation. Because these cases are often the most difficult cases in family law, consult an attorney before proceeding with your case.