Do Grandparents Have Visitation Rights in Adoption?

Do Grandparents Have Visitation Rights in Adoption?

Yes. But the grandparent must act promptly to claim those rights.

Let’s start with a hypothetical. Ten years ago, your son, James, married Susan. They were happily married and had two children of the marriage, Johnny and Sally. You saw your grandchildren at least two times every week, including Thanksgiving and Christmas. You often provided childcare for James and Susan.

After five years of the marriage, James dies in a tragic work-related accident. Sarah struggles with depression and doesn’t let the children see you as often. You know this is hurting John and Sally because you had such an integral role in their lives when James was alive – even more so now that he has died – these children need you.

Is there anything you, the grandparent, can do to ensure you are able to continue playing an active role in your grandchildren’s lives?

Yes. The first thing we must understand is that the law is very protective over parents’ rights. “There is a rebuttable presumption that a fit parent’s decision to deny or limit visitation to the petitioner is in the best interest of the child.”

To overcome that presumption, the grandparent first must show that they have a “significant and viable” relationship with their grandchild. Here, with Johnny and Sally, the grandparents will have no problem proving that. Second, the grandparents must show that the visitation would be in the grandchildren’s best interest.

The best-interest prong is a little more complex. Here the grandparents needs to show, among other factors, that the parent’s withholding of visitation “has caused or is reasonably likely to cause harm to the child.” Proving this often requires navigating the nuance of the law. In our case study, it may require the use of an expert in child trauma to sufficiently prove harm to the child. Ala. Code § 30-3-4.2.

If Sarah Remarries, Can that Extinguish Your Court-Ordered Visitation Rights?

To continue our hypothetical, a year after you son’s death, you obtain an order awarding you visitation rights. Two years later, Susan remarries. Does this marriage affect your court-ordered visitation rights?

No.

That’s good news, but you aren’t out of the woods, yet. After two years of marriage, Susan’s spouse wants to adopt Johnny and Sally. Will that extinguish your visitation rights?

No. But, promptly take action to assert your rights.

Because you are the parent of a deceased legal parent of Johnny and Sally, you are entitled to notice of the adoption. As soon as you receive notice of the adoption, you should retain an attorney to put the court on notice of your prior order granting you grandparent visitation.

In the event you have not already been awarded grandparent visitation rights, now is the time to bring the request to the court. Either before or after the adoption, a grandparent can petition the court to be granted visitation. In our hypothetical, if Susan were to object to the visitation award, you would still need to prove the elements discussed above: strength of relationship and harm to the child due to lost relationship with you. Ala. Code § 26-10E-29.

For any questions regarding grandparent visitation, please give us a call.