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Grandparents & Visitation Rights

Posted by attorney Amy Friedlander

The question often arises whether grandparents, great-grandparents, or other third persons have the right to visit with a child after a divorce or death of parent.

Sometimes, following the divorce or death of a spouse, a parent chooses to refuse or limit contact with the child’s grandparents or other people who previously had a relationship with the child.

The United States Supreme Court addressed a grandparent’s right to visitation in the hallmark case Troxel v Granville (530 U.S. 57, 2000). In Troxel, the Supreme Court overturned a Washington state statute that allowed “any person to petition the court for visitation rights at any time," and which directed that “the court must grant such visitation if it’s in the best interests of the child." Ultimately, the Supreme Court concluded that Washington’s statute was unconstitutional because it interfered with a parent’s right to make decisions regarding the well-being of his or her child. To the Court, that the statute allowed “any person" to request visitation with a child and allowed the court to accord little or no weight to the reasons for the parent’s refusal, was a violation of a parent’s 14th Amendment Due Process rights.

Nevada’s grandparental visitation statute was similar to that of Washington’s, and as a result, has been re-written. Now, in Nevada, courts must afford great deference to a parent’s decision to refuse or limit a third party’s contact with a child, even if that third party is a grandparent, great-grandparent, or some other closely-related person. Basically, if a parent refuses to allow, or unreasonably restricts, visitation, the Court “presumes" that visitation with that person is not in the child’s best interests. Thus, at the outset, the burden is on the person seeking visitation to prove by clear and convincing evidence that the visitation is in the child’s best interests.

Nevada, like all other states, also had to modify its statute to no longer allow “any" person to petition the court to request visitation with a child. Under Nevada Revised Statute 125C.050, only a grandparent, great grandparent, another child of either parent (usually an adult child or step-sibling), or a person who has lived with the child during the child’s lifetime may request visitation with the child. Any other person lacks “standing" to make such a request and his or her request will be dismissed.

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