Protecting your relationship with your grandchildren
Grandparent Visitation and Custody Rights
When there is a conflict between two parents regarding child custody and parent-time it often also impacts grandparents and their relationships with their grandchildren. Under Utah law, there is a presumption that a parent’s decision with regard to grandparent visitation is in the grandchild’s best interests. Because of this, a grandparent’s access to their grandchildren is generally solely dependent upon the grandchild’s parents allowing it.
There are several avenues through which a grandparent can seek court ordered parent-time or custody, but absent the consent of the grandchild’s parent’s, the grandparent will likely be required to show that the grandchild will suffer a “significant harm” if the Court does not enter orders granting parent-time or custody to the grandparents. Those avenues are (1) seeking a guardianship, (2) through a juvenile court case where abuse, neglect, or dependency has taken place, (3) through the Visitation Rights of Grandparents Act [Utah Code § 30-5-2], and (4) through the Custody for Persons Other than Parents Act [Utah Code § 30-5a-103]. Adoption is yet another avenue through which a grandparent can establish legal rights to a grandchild, but because it legally changes a grandparent into a parent it is beyond the scope of this article. More information on adoption can be found here.
Guardianship [Utah Code § 75-5-201 et seq.]
The quickest and easiest way for a grandparent to establish custody of a grandchild is through a guardianship. Once established, a guardianship gives the guardian custody rights over the minor child and allows them to make important life decisions on behalf of the child as though the guardian was a parent. For a grandparent to obtain this type of guardianship, it generally requires either the consent of both parents, or for the grandparent to show that any non-consenting parent is unable to care for the child due to being deceased, incapacitated, or having previously had their parental rights to that child terminated.
This type of guardianship often works best in situations where the parents know that they are not currently in a place to care for their children due to their own youth or other issues such as drug use, and they are willing to allow the grandparents to provide that type of parental care and decision-making authority for the children. It should be noted that this type of guardianship can be terminated at any time if one or both of the parents decide to revoke their consent [for an example see the case In re VKS, 2003 UT App 13].
Abuse, Neglect, or Dependency Action in Juvenile Court [Utah Code § 78A-6-101 et seq.]
After a general district court guardianship, the most common way grandparents obtain custody rights over their grandchildren is through a juvenile court action where the grandchildren have been subjected to abuse or neglect while in the care of their parents. These juvenile cases are usually initiated by child protective services when there is an ongoing threat to the safety of the grandchildren. As part of the case, the court will typically place the grandchildren with a relative, such as a grandparent, if possible. This placement is generally temporary at first, and reunification services are typically provided to the parents to help them try and fix the issues that led to their children having to be taken away. If the parents are unable to remedy those issues, then the Court will often terminate their parental rights and either adopt the children out or create a permanent guardianship. Unlike the general guardianships created by district courts, these guardianships can be permanent and are not subject to revocation by the parents.
Visitation Rights of Grandparents Act [Utah Code § 30-5-2]
The Utah legislature enacted the Visitation Rights of Grandparents Act in 2005 with the intent of providing grandparents an avenue for establishing visitation rights with their grandchildren under certain circumstances. It begins by restating the general rule that there is a presumption that a parent’s decision with regard to grandparent visitation is in the grandchild’s best interests. It goes on to list factors which the court may use, in its discretion, to rebut that presumption and award visitation rights to grandparents.
In 2015 the Utah Supreme Court issued a ruling that severely limited the provisions of the Visitation Rights of Grandparents Act [Jones v. Jones, 2015 UT 84]. In a nutshell, that case raised the standard a grandparent must meet such that a grandparent seeking visitation rights is required to demonstrate that “substantial harm to the child” would occur if those visitation rights were not ordered. In the absence of such proof, the Court found that any order of visitation rights would violate the parents’ constitutional rights.
If you are considering seeking grandparent visitation rights though this method, you should ensure that your attorney is knowledgeable regarding not only the statute, but also case law. Failure to hire a knowledgeable attorney can wind up costing many tens of thousands of dollars with absolutely nothing to show for it. Similarly, if you are defending against a grandparent’s visitation action, your attorney should be well versed on how to get any unfounded claims dismissed quickly, rather than letting the case drag on costing you both money and stress.
Custody for Persons Other than Parents Act [Utah Code § 30-5a-103]
A grandparent can also potentially seek to establish custody rights to a grandchild through the Custody for Persons Other Than A Parent Act. In order to establish custody rights under this law a grandparent must show: (a) the person has intentionally assumed the role and obligations of a parent; (b) the person and the child have formed an emotional bond and created a parent-child type relationship; (c) the person contributed emotionally or financially to the child’s well-being; (d) assumption of the parental role is not the result of a financially compensated surrogate care arrangement; (e) continuation of the relationship between the person and the child would be in the child’s best interests; (f) loss or cessation of the relationship between the person and the child would be detrimental to the child; and (g) the parent is absent or is found by a court to have abused or neglected the child.
The two most difficult elements of this test to prove are usually (f) that the loss of the relationship would be detrimental to the child and (g) that the parent is absent or has been found by a court to have abused or neglected the child. As discussed above, the Jones case would likely require not just that the loss of the relationship would be detrimental, but rather that it would create a “substantial harm to the child.” Recent case law may also require the parents to be absent at the time the petition was filed or to have a prior order from a Court finding that the parents abused or neglected the child [see the Scott v. Scott case]. For this reason, it is advisable to file your petition as soon as possible if you think you might be able to establish custody rights under this law and there is any chance an absent parent will turn back up in the child’s life.
Call the firm for a consultation about grandparent visitation
Intermountain Legal has helped parents and grandparents across Utah favorably resolve custody and visitation disputes. Call our office today at 801-990-4200 or contact us online to schedule a 30-minute attorney consultation for $50 to discuss your family law matter with a Utah Family Law Attorney.
Intermountain Legal is located in Salt Lake City, UT and serves clients throughout all of Northern and Central Utah including Salt Lake City, Midvale, Sandy, West Jordan, North Salt Lake, Bountiful, South Jordan, Clearfield, Woods Cross, Draper, Farmington, Centerville, Layton, Ogden, Lehi, Provo, Orem, Park City and the counties of Davis, Salt Lake, Weber, Utah, Tooele and Summit.