Grandparents in every state in the United States have rights, in some circumstances, to be awarded custody of their grandchildren or to be awarded court-mandated visitation with their grandchildren. Grandparents' rights are not constitutional in nature. Recognition of grandparents' rights by state legislatures is a fairly recent trend, and most of the statutes have been in effect for less than 35 years.
Family relationships can become strained sometimes resulting in separation of close ties including those between grandchildren and grandparents. Parents generally have custody and control of their children including deciding who can and cannot see them. Parental rights are strong and unless a grandparent can prove the parents are unfit or that harm will come to the children, courts will usually not terminate the parental custody.
Legitimate reasons for a court terminating parental custody include physical or emotional abuse of the child, mental illness, substance abuse, failing to provide shelter, food, or other needed care, inducing the child to commit a crime or crimes, long-term illness of the parent or the incarceration of the parent/s.
However, simply demonstrating that the grandparents have better parenting skills, are more financially stable or can provide a better environment is not enough to gain custody or visitation rights.
In Missouri, Grandparents can sue for visitation rights in the following instances:
- The parents are divorced or have filed for divorce. Grandparents may intervene in a pending divorce suit or file to modify an existing order.
- One parent is deceased and the other has denied visitation to the parent of the deceased parent.
- The grandchild lived with the grandparent for at least six of the 24 months preceding the filing of the petition.
- The grandparent has been "unreasonably" denied visitation for 60 days or more. However, if the "natural parents" are legally married to each other and are living together with the child in what is sometimes called an "intact family," a grandparent may not file for visitation under this provision. Note: Effective August 28, 2019, per a change to RSMO 452.402 grandparents can seek visitation every 60 days verses the previous 90 days.
- The child is adopted by a stepparent, another grandparent or other blood relative.
Courts must consider the child's best interests. It is presumed that parents living together know what is in their child's best interests, but this is a "rebuttable presumption," meaning that the burden of proof is on the grandparents to prove that granting them visitation is in the child's best interest.
Missouri statutes allow the court to appoint a guardian ad litem, order a home study or consult with the child in order to determine the child's best interests. Mediation is often suggested as a better way to resolve disputes and is usually supported by the courts. Mediation can be a good option because it is less expensive, more private, faster and less confrontational. Even when mediation isn't wholly successful, it is generally less destructive to family relationships than a lawsuit.
Law Upheld as Constitutional
Following the U.S. Supreme Court case of Troxel v. Granville, a case in which the court, citing a constitutional right of parents to rear their children, struck down a Washington state law that allowed any third party to petition state courts for child visitation rights over parental objections and gave special weight in visitation cases to the decisions of parents, many states had their visitation statutes challenged. Missouri's challenge came in 2002 in the case of Blakely v. Blakely. In finding for the grandparents, the Missouri Supreme Court upheld the constitutionality of its statute, listing several differences between it and the Washington State statute challenged in Troxel. It cited the following differences:
- The Washington statute concerned third-party visitation; Missouri law limits visitation to grandparents.
- The Washington statute did not have the 90-day requirement.
- In Missouri, grandparents bear the burden of proving that visitation was "unreasonably" denied.
- Missouri provides the procedures named above to assist judges in determining best interests.
Critics of the Blakely v. Blakely decision point out that the law gives no special weight to a parent's decision, as the Troxel decision seems to demand.
A 2013 Missouri Case
In the 2013 decision of T.W. and R.W. v. T.H., a Missouri Court of Appeals found that a lower court had overstepped its bounds when it gave a grandmother visitation that amounted to around 20% of the available time with the child. The appeals court found that this amount of visitation was typical of what might be given to a parent and not what a grandparent should expect. As a result, the award of visitation "impermissibly impinges on the mother's fundamental constitutional right," the court ruled.
The court based its decision on the provision of the law that states that 90 days can pass before a grandparent can file suit, "This indicates to the courts that visitation should not be excessive, should not be on a par with parental visitation in custody matters, and should not necessarily be commensurate with the contact the grandparents enjoyed prior to the deterioration of relations between the parties."
In Missouri, adoption may put an end to a grandparent's right to visitation. An earlier version of the law stated that grandparents could sue for visitation if a grandchild was adopted by a stepparent, grandparent or other blood relatives. This version was replaced by the simple statement, "The right of a grandparent to maintain visitation rights pursuant to this section may terminate upon the adoption of the child."
Family Access (Visitation) Forms
A person may file a family access motion, in accordance with Section 452.400, RSMo, if rights to custody, visitation or third-party custody under a judgment of dissolution, legal separation or modification are denied or interfered with by a parent or third party without good cause.