Grandparent’s Rights to Visitation
“If either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the child’s minority upon a finding that the visitation would be in the best interest of the minor child.
Best Interest of a Minor ChildAs you know, “best interest of a minor child” is the seminal phrase used and followed in determining and ensuring a child’s welfare is protected. It is a case-by-case analysis supported case laws and relevant facts of the case. Therefore, critical analysis of the law with the specific facts of the case is of utmost importance.
Presenting it to the court (both in writing and orally) requires a focused understanding of the law. There are statutory conditions the court follows, including but not limited to: FC 3102 (b) states, “in granting visitation pursuant to FC 3102 other than a grandparent of the child, the court shall consider the amount of personal contact between the person and the child before the application for the visitation order.”
Section 3104 (a)Section 3104 (a) specially addresses the rights of the grandparents to visitation. The court is given authority to allow grandparents to court ordered visitation if it determines both of the following: (1) find that a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child. (2) Balances the interest of the child in having visitation with the grandparents against the right of the parents to exercise their parental authority.
Section 3104 (b)However, Section 3104 (b) states in full, “A petition for grandparent visitation shall not be filed while the natural or adoptive parents are married, unless one or more of the following circumstances exist: (1) the parents are currently living separately and apart on a permanent basis. (2) one of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse. (3) one of the parents joins in the petition with the grandparents. (4) the child is not residing with either parent. (5) the child has been adopted by a stepparent (6) one of the parents is incarcerated or involuntarily institutionalized.”