Grandparents Rights and Grandparent Visitation
Can Non-Parents Challenge a Parent’s Right to Custody?
Yes. The “parental presumption” is a legal assumption 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.
There are other ways to rebut parental presumption. One is by demonstrating the Hutchinson factors. Until recently this was the only way to rebut the parental presumption in district court.
The parental presumption in favor of custody been placed in the biological parents can be rebutted only by evidence establishing that a particular parent at a particular time generally lacks all three of the characteristics that gave rise to the presumption: (1) that no strong mutual bond exists, (2) that the parent has not demonstrated a willingness to sacrifice his or her own interest in welfare for the child’s, and (3) that the parent lacks sympathy for an understanding of the child that is characteristic of the parents generally. The presumption does not apply to a parent who would be subject to the termination of all parental rights due to unfitness, abandonment, or substantial neglect. Hutchinson v. Hutchinson, 649 P.2d 38 (1982)
This is extraordinarily difficult to prove. It can be done, but is very rare.
- What Is A Non-Parent Or Grandparent Custody Petition?
- 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