It is often said that grandparenting offers all the best parts of parenting without all of the hard parts. Becoming a grandparent means that you get to watch someone you love with all your heart—your own child—experience a parent’s love for a child. It is an experience that should bring you closer as a family.
Unfortunately, it doesn’t always work out that way. If you and your adult child (or their spouse or partner) have a difficult relationship, your child may limit access to your grandchild. If your grandchildren’s parents are divorced or never married, your own child may have little time with your grandchild and may be reluctant to share it. There are also cases where a young parent is struggling with substance or mental health issues and has very limited contact with his or her child which limits the grandparent’s access, as well.
The bottom line is there are many situations in which you, as a grandparent, may want to be more deeply involved in your grandchild’s life than you are. When your child is not giving you, or cannot give you, access to your grandchild, what are your legal rights as a grandparent?
Do You Have Visitation Rights to Your Grandchild?
In Ohio, grandparents’ rights laws allow a Court to award grandparent visitation with their biological or adopted grandchildren—but only under very limited circumstances. In general, parents have total authority over whether third parties get to spend time with their child. And, whether you like it or not, legally speaking, grandparents are considered third parties.
If you wish for visitation with your grandchildren, but your child is still married to the grandchildren’s other parent, you are not legally entitled to grandparent visitation with those children. The Court will not award it or entertain a motion on your behalf.
But, back to the limited circumstances in which a court might order grandparent visitation in Ohio. Those are:
- When the grandchild’s parents who were married terminate their marriage;
- When your child, the grandchild’s parent, is deceased (this becomes much more difficult if you are the father’s parent and his legal rights were never established);
- When the grandchild is born to an unmarried woman, the father’s parents may seek visitation if paternity has been legally established, and the mother’s parents may seek visitation.
The existence of one of those situations does not guarantee that a grandparent will be awarded rights to visitation with a grandchild, but it opens the door for a court to consider it. An Ohio court will order visitation only if doing so would be in the best interests of the child.
How to Seek Visitation With a Grandchild
If you fall into one of the categories above and want to seek a legal order for visitation with your grandchild, how do you do it? First, you must file a Motion or Complaint to Establish Visitation. However, the exact circumstances of your case will dictate the court in which the motion is filed.
Often, there is a prior court case involving the child, such as a divorce, child support matter, or paternity or parentage case. If there is a prior case, then the Motion to Establish Visitation needs to be filed in that court, even if the previous case is closed and a final order has been entered in the case.
If there is no prior case and your grandchild’s parents are unmarried, you must file your Complaint to Establish Visitation in the Common Pleas Court in the Ohio county where your grandchild lives. Typically, such motions are filed in the court’s Juvenile Division, sometimes in the Domestic Relations Division, depending on which court handles matters between unmarried parents.
Once your motion is filed, the Court will proceed with your case to determine if you are eligible to have visitation established and then whether that visitation is in the best interests of the child. There are multiple factors to be considered in that determination, including the bond and past relationship you had with the child, the child’s available time, other court-ordered visitation or parenting time, and the current wishes of the child’s parent(s).
Getting an order for visitation is one thing; but what if the parent refuses to honor the court’s order? In that case, you may need to file a contempt motion with the court that granted the order for visitation. Be mindful that while you may win a legal victory by having your grandchild’s parent held in contempt, the act of doing so is likely to further erode your relationship with the parent—and possibly with your grandchild. Conversely, doing so may be the only way to have a relationship with the grandchild. An experienced Ohio family law attorney may be able to help you identify other options, such as mediation, to resolve the matter more peacefully.
Do Grandparents’ Rights Allow Custody of Your Grandchild?
Sometimes, your legal concern isn’t just a simple wish to spend more time with your grandchild. You may feel that your grandchild’s current living situation isn’t safe or stable, and that they would be better off living with you—in other words, for you to have legal custody. It is possible for a grandparent to get legal custody of a grandchild in Ohio, but it is not easy. Ohio courts recognize that biological parents have priority in the care of their child.
If an Ohio court is going to award custody of a child to a non-parent, the first step is to make a determination that the parents are unsuitable or unfit. A parent loses that first priority for custody if the child has been adjudicated abused, neglected, or dependent, or the parent is proven to be unfit. This is a high legal burden and must be proven about both parents, but once that threshold is crossed, the court must then consider whether it is in the child’s best interests for the grandparent to be granted custody. This process may be necessary to protect the health and safety of a child, but again, it is a serious step to take, and is likely to damage your relationship with the child’s parent or parents. Conversely, it may be the only way to ensure the child’s safety and welfare is protected and the child is nurtured.
There are other options if you need to care for your grandchild for a period of time, such as Kinship Power of Attorney affidavits and Caretaker affidavits. These documents allow Ohio grandparents to be legal caretakers of their grandchildren without having to file for legal custody and force a determination of the parents’ fitness.