Grandparents Rights and Grandparent Visitation
For Grandparent Or Non-Parent Custody And Issues, Click Here
Can Non-Parents Challenge a Parent’s Right to Custody?
Yes. The “parental presumption” is a legal presumption that the children would be better off with a parent than a grandparent or other non-parent, and that a parent’s decisions regarding a child will be in the best interest of the child.
However, the parental presumption may be rebutted. Once the parental presumption is rebutted, non-parents, such as grandparents, can be on equal footing with parents in their bid for custody or visitation.
There are several different ways to rebut the parental presumption.
In juvenile court, if a child is adjudicated to be abused, neglected, or dependent on the state, then parental presumption is rebutted. If a petition is pursued in juvenile court, the parents are generally appointed free counsel.
Utah’s Grandparent Visitation statute:
Can Grandparent’s Get Visitation (Even Without Requesting Custody) In Utah?
Yes, Utah has a grandparent visitation right’s statute which is Utah code § 30-5-2.
This statute allows a grandparent to file an independent petition in district court, asking for visitation and it also allows a petition to be filed in juvenile court in conjunction with a juvenile court matter or in a custody or divorce case in conjunction with an ongoing custody matter.
- the grandparent has filled the role of custodian or caregiver to the grandchild that:
- is in a manner akin to a parent; and
- the loss of the relationship between the grandparent and the grandchild would cause substantial harm to the grandchild; or
- both parents are unfit or incompetent in a manner that causes potential harm to the grandchild.”
A similar statute was enacted years ago but was found to be unconstitutional, so in 2020 the Utah legislature revamped the statute in an effort to make the statute constitutional, thus allowing grandparents to get visitation even if they don’t seek custody.
As of the date of this article (August 31, 2020), this statute has not been challenged in an appellate court so its constitutionality has not been tested. However, unless the statute is struck down, it is currently in effect and available.
The statute acknowledges that a parent’s decision regarding grandparent visitation is presumed to be in the child’s best interest, but proving the facts referenced above can rebut that presumption. The new statute provides an avenue for grandparent visitation that does not require proving both parents are unfit, although that is one way to do it. The other option is to demonstrate a grandparent has (a) become a surrogate parent to the child and (b) that losing that relationship would greatly harm the grandchild. Proving those facts, in many cases, can be much easier than proving parental unfitness.
If the court finds that the parent’s choice about a grandparent’s contact or visitation has been successfully rebutted the court, then considers what is in the best interest of the grandchild. The court can look at many factors but is required to consider
- the reasonableness of the parent’s decision to deny grandparent visitation;
- the age of the grandchild;
- the death or unavailability of a parent and
- if the grandchild is 14 years or older the grandchild’s desires of visitation with the grandparent.
For additional information on grandparent or non-parent custody click here
- What Rights Do Non-parents or Grandparents Have If They Are Awarded Custody?
- Are Non-Parent Or Grandparent Custody Petitions Temporary?
- Who Do You Typically Represent In These Cases?
Recent Expansions of Grandparents Rights & Grandparents Visitation in Utah
Within the last 5 years there has been growing support in Utah for grandparents’ rights and grandparent visitation that comes mostly from the “Custody and Visitation for Persons Other than Parents Act.”
A parent’s decision being in the best interest of the child is the rebuttable presumption. If clear and convincing evidence is presented to the court it is possible to establish grandparent custodial rights or grandparent visitation rights. This is also true for other non-parents. Success is dependent on providing clear and convincing evidence for all of the following:
a) The assumed role of parent by the grandparent or other non-parent has been intentional;
b) A parent-child type relationship exists due to an emotional bond between the child and the grandparent or other non-parent;
c) The well-being of the child has been contributed to by the grandparent or other non-parent either emotionally or financially;
d) A financially compensated surrogate care arrangement is not the reason for the assumed parental role;
e) It is in the best interest of the child for the relationship between the grandparent or other non-parent and the child to continue;
f) Detriment to the child would occur as a result of loss or cessation of the relationship between the child and the grandparent or other non-parent; and
g) The parent:
i. is absent; or
ii. is found by a court to have abused or neglected the child
As a Child Welfare Law Specialist, Utah County Grandparents Rights Lawyer Kelly Peterson has significant experience helping obtain grandparent rights and/or grandparent visitation. In addition to his experience helping grandparents throughout Utah county obtain rights and visitation from the court, Kelly Peterson has been able to successfully assist other non-parents obtain visitation and custody as well. To discuss the unique details of your case, you can call (801) 616-3301 to schedule a consultation.
Law Office of Kelly Peterson
3651 N 100 E, Suite 150
Provo, UT 84604
Phone: (801) 616-3301