Family Law

Post-Divorce Custody Rights of Grandparents and Stepparents

By Melissa Heinig, Attorney
Learn about grandparent and stepparent rights and how to protect them.

Divorce is brutal, and when you and your spouse decide to end your marriage, the effects can impact more than just your immediate family. Stepparents and grandparents often forge a significant relationship with the children in their family, and when parents divorce, those relationships are at risk.

Child Custody for Biological Parents

When couples with minor children divorce, the court must decide how to handle custody and visitation between both legal parents. In most cases, couples will work together to determine where the child will live most of the time and which parent will be responsible for the child on a day-to-day basis. Then, the couple will create a visitation schedule for the child and the other, non-custodial parent. If parents can’t agree on how to handle custody and visitation, the court will decide based on what’s in the child’s best interest.

In most cases, the court won’t grant custody or visitation to any individual other than a legal parent, but if you can demonstrate that your involvement as a third-party grandparent or stepparent is in the child’s best interest, the court may consider breaking the general rule.

The Court Values a Legal Parent’s Opinion on Visitation

The United States Supreme Court ruled that parents have a fundamental right to raise their children how they see fit, meaning if a custodial (or non-custodial) parent denies visitation between a child and grandparent or stepparent, the court presumes the decision is in the child’s best interest.

In rare cases, the court will override a legal parent’s decision to deny visitation after a divorce, but only if you demonstrate that the refusal is detrimental to the child’s well-being.

Grandparenting Rights Vary by State

Most states limit grandparenting rights after a divorce, but that doesn’t mean your relationship with your grandchild is over. Naturally, the best first step to securing a continuing relationship is to work with the child’s legal parents to create a post-divorce plan. It’s no surprise that divorce creates tension between families, but just because the child’s parents are no longer together doesn’t mean your relationship should change.

Children crave stability, so if you’ve had a weekly dinner date with your grandchild, most parents will agree that continuing that routine is best for the child. If you're on good terms with the parents, consider creating a written agreement detailing when you’ll see the child. In most states, a grandparenting time agreement isn’t binding in court, but if a parent suddenly refuses to honor the arrangement, you’ll have proof to bring to the court that demonstrates the type of relationship you’ve had with the child.

In many states, grandparents can sue for the right to visit with their grandchildren, but first, you’ll need to prove you have the standing to ask the court for help. Each state is different, but in most states, grandparents can only sue if:

  • the child’s legal parents are divorcing, separated, or already divorced
  • the child was born out of wedlock, and the parents don’t live together
  • someone other than the child’s parents have legal custody of the child, or
  • the grandparent has raised the child, with or without a court order, over the course of the previous year.

If you believe you have standing to sue, you still have work to do. Because the court presumes that a fit parent’s decision to deny visitation is in the child’s best interest, you’ll also need to demonstrate that the child will suffer mentally, physically, or emotionally if the court denies your visitation with the child.

Some states are more restrictive than others and require proof that the grandparents lived with and cared for the minor child for a significant length of time before the divorce. Others, like Connecticut and Idaho, only require the grandparent to prove that visitation is in the child’s best interest.

Stepparents Have More Options Than Grandparents

It’s not uncommon for parties to celebrate second or even third, marriages. With the increase in subsequent marriage comes a rise in blended families. While the media often portrays stepparents as “evil,” in real life, stepparents are a crucial part of a child’s development and divorce can alter that relationship forever.

Stepparent Adoption

Stepparents can play an essential role in a child’s life, especially if a child’s second legal parent isn’t in the picture. If you marry a single parent and the child’s other parent isn’t involved or would prefer not to be, you may be able to legally adopt the child through your state’s stepparent adoption process. The key to a stepparent adoption is consent from all parties, so if the child’s other parent isn’t on board, the court won’t approve the adoption (unless the other parent is unfit). Once the court approves your stepparent adoption, you have the same rights and responsibilities as a biological parent, including custody and visitation rights after a divorce.

If you haven’t legally adopted your stepchild, divorce may limit your rights. You and the child’s legal parents can work together to create a parenting time agreement that allows the child to visit with you, but if either legal parent disagrees, your only option may be to petition the court for custody or visitation.

Like grandparents, stepparents who wish to override a fit parent’s decision to deny custody or visitation to a stepchild will need to prove that they have the standing to sue. Every state’s laws on standing vary, but most require you to demonstrate that you’ve been involved with the child for a significant amount of time, that the child wishes to continue a relationship with you, and that denying the relationship would be harmful to the child’s best interest.

Visitation and custody issues are complex and the rules vary depending on where you live. If you feel that a legal parent wrongfully denied you access to a child, contact an experienced family law attorney in your area to learn more about your options.

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