A cohesive and nurturing family is essential for a child’s well-being and emotional development. Contributing to a child’s welfare and growth are grandparents who may contribute in a limited way to a child’s support or who may play a major role in a child’s upbringing. While parents have certain deep-rooted rights in the care and nurturing of their children, the rights of grandparents are secondary but by no means barred when it comes to visitation rights. If you are a grandparent seeking visitation of your grandchild that has been denied by one or both parents, contact a Medina family attorney to discuss your options.
What Rights do Grandparents Have?
For much of our nation’s history, grandparents had no or very limited rights to legal custody or visitation of their grandchildren. All 50 states allow visitation rights by grandparents but are dependent on a court’s determination and if certain conditions exist. Also, the states are not uniform in their decisions when such rights are opposed by the parents. In fact, the 2000 US Supreme Court case of Troxel v. Granville upheld Washington State’s right to deny grandparents visitation rights if the parents opposed it. All states have varying conditions when such rights may be asserted or sought.
Ohio Law Permits Visitation in Certain Circumstances
The Ohio courts, however, have allowed grandparents visitation rights pursuant to ORC 3109.051, though the grandparents have to file a motion to have it granted and demonstrate that their visitation is in the child’s best interests and they have an interest in the welfare of the child. Under this code section, Ohio law recognizes 3 circumstances under which grandparents can move the court for visitation rights:
1. When the parents or parent files a petition for dissolution, separation or annulment.
When this occurs, the grandparents can file in Domestic Relations court to intervene in the action, though the grandparents can also move the court to be granted visitation rights after the dissolution proceedings are over so long as there has been a change in circumstances. For this reason, having a Medina family attorney promptly file for intervention on your behalf when a petition for dissolution, separation or annulment is filed is highly advised. As with most decisions or court rulings involving the children, the standard used is whether granting visitation to the grandparents is in the best interests of the children.
2. A parent is deceased.
When a parent dies and leaves minor children, the obligations of the surviving parent can be overwhelming. The assistance of one or both grandparents can offer significant relief to the parent as well as fill to some extent the void a child often feels when a parent dies. The grandparents do have to file a motion seeking visitation and demonstrate that their visitation and involvement in the children’s life is in the child’s best interests.
3. The mother was unmarried when the child was born.
The code permits the maternal grandparents to file for companionship, which is akin to visitation, when the child is born to an unwed mother. The paternal grandparents may also file for visitation once the father’s paternity has either been acknowledged or proven.
Factors Considered by the Court
A court will not automatically grant visitation to grandparents. As indicated, the prevailing standard is if it is in the best interests of the child. In considering this, the court looks at a number of factors:
1. Do any of the parents consent or object to the request?
2. What concerns does a parent have regarding visitation?
3. How has the child interacted with the grandparents or what is the nature of their relationship?
4. The age of the child.
5. The child’s adjustment to home and school and the community.
6. The child and parent’s availability for visitation.
7. The geographical distance between the child’s home and the grandparents’ residence.
8. The child’s safety and health.
9. The amount of time the child has to spend with siblings
10. The mental and physical health of the grandparents.
11. Whether a grandparent has been convicted of child abuse or child neglect.
12. The flexibility of the grandparents in rescheduling missed visitation.
13. The child’s wishes and concerns after the court interviews the child “in-camera."
14. Any other relevant factor concerning the best interests of the child.
Should the parents agree to visitation but want control or supervision, they will have to provide a sound reason or explanation as to why the grandparent poses risk or why it is justified in terms of the needs of the child.
Federal law does not play a major role in grandparental visitation rights. The decision in Troxel v. Granville may have recognized a fundamental right of parents in the care, custody and control of their parents, but there is no guiding standard for the states to follow. Consequently, states are free to deny grandparents visitation rights if the parents oppose it. However, in 2005, Ohio’s state Supreme Court ruled in Harrold v. Collier that the parents’ wishes do not outweigh the best interests of the child and that its statute regarding grandparental rights, ORC 3109.11, is not an unconstitutional infringement on a parents’ right to custody, care and control of their children.
Also if a state does permit visitation rights and the grandparents reside in a different state, that state must recognize that right pursuant to The Visitation Rights Enforcement Act. This federal legislation allows grandparents to visit their grandchildren in any US state so long as they have visitation rights in one state.
Ohio law is more flexible than many other states in not requiring that a parent be unfit or pose a danger to the child’s health and safety before granting visitation. But grandparents may only move the court in limited circumstances when seeking visitation if the parents oppose it. Occasionally, a Medina family attorney can suggest mediation as a means to reach a compromise in these emotional times.
If you have questions or concerns about Ohio grandparent rights in Medina, Brunswick or Wadsworth, call a Medina family attorney at Erb Legal LLC at .