Today, all states have statues authorizing a court to award visitation to a grandparent under certain circumstances.

California allows a grandparent to request visitation in a custody proceeding. Family Code § 3101 (a). Here the grandparent is joined as a party into the action. Another procedure for a grandparent seeking a court-ordered visitation right is for the grandparent to submit an independent petition. Family Code § 3104.

California requires two prerequisite findings before granting visitation rights to a grandparent. First, there must be a preexisting relationship and bond between the grandparent and the grandchild and second, the requested visitation must be in the best interest of the child. If the prerequisites are found, the court must also balance the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority. Family Code § 3103 (a) (2).

These visitation orders cannot interfere with a nonparty birth parent's visitation rights. Family Code § 3104 (g).

California does not allow the grandparent to petition if the family is still intact and the parents simply refuse to allow visitation. Exceptions to this rule, however, can be found when the child's parents are married but are currently living separate and apart on a permanent basis Family Code § 3104 (b) (1); or one of the parents has been absent for more than one month without the other spouse knowing the absent parent's whereabouts Family Code § 3104 (b) (2); or one of the parents joins in the grandparent visitation petition Family Code § 3104 (b) (3); or the child is not residing with either parent. Family Code § 3104 (b) (4).

In contrast to California, Virginia has a broader law allowing grandparents to seek visitation even when the parents and children are in an intact household. Virginia's Supreme Court rejected a challenge to its third party visitation law, on the grounds that it interfered with a parent's constitutional right to autonomy in child rearing. The court held that the statute would be constitutional even as applied to intact families if visitation were ordered even over the objection of a parent on a showing that the child would be harmed without such visitation. Williams vs. Williams.

Virginia is in the minority. Most courts do not allow a grandparent to come into court if the family is still intact. The intent is to preserve the parents constitutional right of privacy and autonomy in child rearing.

Illinois recently upheld the constitutionality of its grandparent visitation law which allows an award only when the family is not intact. The statue allowing grandparent visitation only for non-intact families was not a violation of the equal protection clause of the constitution. West vs. West (1998) 689 N.E. 2d 1215.

There is a strong public policy of preference for the fundamental rights of parents over nonparents. California courts defer to jointly expressed wishes of parents except in very extreme cases. Therefore, if both parents object to grandparent visitation, the court may not grant it. For instance, it must be found by clear and convincing evidence that denial of visitation would actually be detrimental to the child. Marriage of Gayden (1991) 229 CA 3d 1510.

When a mother lost custody of her son, the maternal grandmother joined as a party in a marital dissolution proceeding on the issues of child custody and visitation. After a lengthy court battle, she too lost custody to the father but was granted visiatioin rights. In re Marriage of Perry (1998) 71 Cal. Rptr. 2d 499. The court ordered her to pay a portion of the attorney fees for the attorney appointed on behalf of the grandchild (over $45,000) and the attorney fees and costs incurred by the father as a result of the grandmother's effort to obtain custody from him (over $69,950). The appellate court overturned the lower court's decision which ordered the grandmother to pay counseling costs for her grandson as well.

Another cost associated with an order for grandparent visitation is it may impact child support. The impact could be a lesser child support order for the custodial parent. The court may allocate the percentage of grandparent visitation between the parents in computing child support by imputing to either or both parents visitation time for purposes of time-sharing. Family code § 3103 (g) (1).

California's grandparent visitation law applies to situations in which the parents of the child are not married. Family Code § 3103 (a). Kentucky goes a step further and ruled that grandparents have standing to bring an action for custody or visitation of a grandchild even when paternity has not bee adjudicated. Posey vs. Powell (1998) 965 S.W. 2d. 836. Still, 18 states do not allow grandparents visitation rights for children born out of wedlock. After a child has been adopted and parental rights are terminated, the adoption also terminates all rights of grandparents visitation.

Colorado held that a grandmother did not have standing to assert rights under the grandparent visitation statue after termination of parental rights. People in Interest of I.W.W. (1997) 936 P.2d 599. In the same year, Kentucky held that termination of mother's parental rights did not terminate nor adversely affect visitation rights of maternal grandparents. Dotson ves. Rowe (1997) 957 S.W. 2d 269. In Texas, it depends on when the grandparents file suit for visitation. Grandparents have standing if they filed suit for visitation before parent's rights were terminated. Bowers vs. Matula (1997) 943 S.W. 2d 536.

In Ohio, the maternal grandparents requested visitation rights with respect to a child born to an unwed mother when the stepfather adopted the child. The court held that the child's subsequent adoption by the stepfather did not terminate the relationship between the child and the family of the biological parent whose status was changed by the adoption. Moore vs. Strassel (1988) WL 101354. Iowa permits visitation by grandparents after a stepparent adoption in almost any situation where the grandparent relationship has been established. Iowa Code § 598.35.

California may grant reasonable visitation to the grandparent if either parent is deceased. Family Code § 3102 (a). However, if the child is later adopted by a person other that the stepparent or grandparent of the child, then any visitation rights granted before the adoption of the child automatically terminate. Family Code § 3102(c). Minnesota ruled on visitation after the death of the parent and upheld continued visitation when the children were adopted by the other grandparents. In re Santoro (1998) 578 N.E. 2d 369. Seven states do not grant grandparent visitation rights after the death of their child.

Depending on the laws of the state and the particular circumstances, grandparents visitation rights are limited. They can even be lost, and they may have to pay highly for those rights.