As a Caregiver for Your Grandchildren,
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 – your grandchildren need you.
What You Need to Legally Acquire Visitation Rights
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 grandchildren. 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 need 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.)
What if a Stepparent Moves Toward Adopting Your Grandchildren?
To continue our hypothetical, a year after your 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.
What You Should Do If the Grandchildren Are Adopted:
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 children due to lost relationship with you. (Ala. Code § 26-10E-29)
Other related blogs:
What Happens if Parents Won’t Consent to Grandparent Adoption?
How to Adopt Your Grandchild: 4 Basic Elements
For any questions regarding grandparent visitation, please give us a call at 334-546-2009.
Does Abandonment Make a Difference When You are Adopting?
