Grandparents often play a vital role in a child’s life: offering love, support, and stability. But what happens when family conflicts, parental unfitness or other difficult circumstances put that bond at risk? In such cases, grandparents may seek legal visitation or even custody of their grandchildren to ensure their well-being.
Historically, under common law—an unwritten set of legal principals—grandparents had no legal rights to see their grandchildren. Parents had absolute control over visitation. This legal framework changed dramatically in the 1960s to the 1990s—where all 50 states passed laws recognizing grandparents’ visitation rights under certain circumstances. Legal avenues for grandparents seeking custody of their grandchild were also incorporated into state laws.
Parents still retain heightened protections under the Due Process Clause of the Fourteenth Amendment to make decisions concerning the care, custody and control of their child. However, there now are legal avenues available to grandparents’ seeking visitation or custody of their grandchild.
Navigating the legal system can be complex. This three-part series will explore the legal options available to grandparents in Ohio, the factors courts consider, and the steps to take when seeking visitation or custody.
Companionship or Visitation Rights of Grandparents
The Ohio Statutes have recognized three circumstances where a grandparent (or other relatives) may seek companionship or visitation rights:
(1) when married parents terminate their marriage or legally separate;
(2) when a parent of a child passes away; and
(3) when the child is born to an unmarried woman.
In these cases, a court may order reasonable companionship or visitation rights to a grandparent after a determination that it would be in the best interests of the child.
1. When married parents terminate their marriage or legally separate
During difficult divorces (or other proceedings for the termination of their marriage), one or both parents may prevent grandparents from seeing their grandchildren due to conflict with the other parent.
In such a scenario, grandparents may file a motion seeking companionship or visitation rights under Ohio Revised Code 3109.051(B) and (D). This motion can be filed either during the pendency of the court proceedings or after a final order is issued if the circumstances change.
For a court to grant visitation, grandparents must show that: (1) they have an interest in the welfare of the child and (2) visitation is in the best interest of the child.
2. When a parent passes away
When a father or mother passes away, parents of the deceased father or mother may lose contact with their grandchildren. Ohio law provides a legal remedy for such situations under Ohio Revised Code 3109.11. Grandparents may file a complaint requesting reasonable companionship or visitation rights, which will be granted if the court finds it is in the child’s best interest.
What if the surviving parent remarries or that a stepparent adopts the child? Ohio law specifies that remarriage or adoption by a step-parent does not prevent a court from granting visitation rights to the deceased parent’s parents.
3. When the child is born to an unmarried woman
When the parents of a child were unmarried at the time of birth, grandparents may file for visitation, but the process differs for maternal and paternal grandparents.
Maternal grandparents can immediately file for visitation. Paternal grandparents, however, must wait until the father legally acknowledges paternity or a court determines parentage before seeking visitation rights.
As with the other situations, a court will grant visitation only if it finds that it would be in the best interest of the child.
What About Cases of Abused, Neglected, or Dependent children?
The Ohio Revised Code does not expressly provide for grandparent visitations rights when a child is involved in an abuse, neglect, or dependency case in juvenile court. So, what are grandparents’ options in these situations?
Under the Ohio Administrative Code, a public children services agency (PCSA) or a private child placing agency (PCPA) with temporary custody of a child, must, in certain circumstances, provide opportunities for regular and frequent visitation with the child’s “parent, guardian or custodian.”
However, in most cases, grandparents do not automatically qualify as a guardian or custodian. In such cases and in situations where grandparents cannot seek visitation rights through the three legal avenues discussed earlier, they may want to consider seeking custody of the child.
Parts 2 and 3 of this series will explore the circumstances under which grandparents can obtain legal custody of their grandchildren.
