Grandparent visitation issues usually arise when, after a divorce, one parent receives the bulk of the custody and the former spouse’s parents find themselves denied access. It seems unfortunate that grandparents would have to go to court just to see their grandchildren, but the animosities between spouses can spread to their parents as well.
Missouri has a specific statute for grandparent visitation, and it only allows a grandparent to intervene in a custody case under limited circumstances: (1) when the parents have divorced, or (2) one parent has died and the surviving parent denies reasonable visitation to the parents of the deceased parent, or (3) the child has resided in the grandparent’s home for at least six months within a 24 month period; and (4) given one of these three situations, the grandparent has been denied visitation for at least ninety consecutive days.
Grandparent visitation is limited by U.S. Supreme Court cases that have held that generally parents have a right to raise their children as they wish, and the government cannot force parents to allow grandparents access to their children, unless the family is no longer intact and the state, through the court system, has the authority and the duty to act in the best interests of the child.
Recently, the Eastern District of the Missouri Court of Appeals expanded the right of grandparents to seek custody or visitation rights. In Hanson v. Carroll, the probate court appointed a maternal great-grandmother and maternal aunt as co-guardians of a minor child. (The probate court has jurisdiction to award guardianship when a parent has been deemed unfit, or dies, or becomes incarcerated, and it is necessary to give one or more persons the legal authority to parent the child and avoid placement in foster care.) The co-guardians in this case refused to allow the grandparents to see the child. The grandparents filed an independent petition for custody in the family court, arguing that Section 452.375.5(5), the custody statute in family law cases, authorized their filing. No one questions that they could not proceed under the grandparent visitation statute, and no one questions the fitness of the guardians. Usually, without a challenge to fitness or invoking the grandparent visitation statute, the grandparents would be out of luck. And the trial court agreed, dismissing the petition. But on appeal, the Eastern District reversed, holding for the first time that “whenever the welfare of the child requires,” a grandparent may file an independent petition for custody or visitation.
This holding is highly significant and greatly expands the ability of grandparents to use the courts to gain access to their grandchildren. The scope of this new right will be determined in the future, as courts wrestle with cases that brush up against constitutional limits. But certainly with this ruling, grandparents denied custody or visitation have a clear legal avenue to bring their case to the attention of the circuit court.
If you have questions about grandparent visitation, contact us – we can help.