Will The Court Go As Far As Awarding Visitation To A Non-Parent?

If you thought that the only person who could seek orders for visitation with your children during your divorce is your ex-spouse, you’re not alone with this mistaken belief. When grandparents or step-parents begin asserting rights to have continuing contact with your children, you may find yourself being bound by some unfavorable orders.

The scenario can occur in a number of ways, but most commonly it occurs when a husband and wife decide to separate, and husband’s parents, for example, decide that they too need to have orders awarding them visitation rights with their grandchildren.

While generally there is a presumption that fit parents act in the best interests of their child and therefore has the right to make child rearing decisions including who the child should or should not visit with, courts have on many occasions been called upon to decide whether grandparent visitation, or step-parent visitation is also in the best interest of the child.

One of the deciding cases in this area is Troxel v. Granville (2000) 530 U.S. 57, 72-73. In Troxel, a mother decided to limit visitation between her children and their paternal grandparents shortly after the death of the father. The grandparents petitioned for a visitation order under a Washington statute that permitted the court to order visitation on the basis of a determination that “visitation may serve the best interest of the child.” Despite the fact that the mother objected, the court granted visitation to the grandparents.

The case was reviewed by a higher court, which held that the lower court infringed upon the parent’s constitutionally defined fundamental right to make decisions concerning the care, custody, and control of her children. The opinion concluded that there is a presumption that fit parents act in the best interests of their children, and when a fit parent’s decision is challenged, the court must give the parent’s decision special weight.

On the one hand, while it may be in the best interest of the child to have continuing contact with non-parents such as a step-parent or a grandparent, on the other hand, if visitation with a non-parent is compelled over the objection of the parents, it may be more likely that a parent’s authority and the strength of the family unit is significantly affected and highly diminished.

Courts are often faced with these competing interests and oftentimes an order may arise with results more favorable towards others close to the child with whom the parents are at cross-purposes.