It is often difficult for grandparents to get custody, because family courts typically determine that placing the child with his or her parents will be in the child’s best interests. However, there are also a few situations where the courts may rule that a child of divorcing parents would be better cared for by his or her grandparents. Salt Lake City custody attorney Darwin Overson explains.
Situations Where Utah Grandparents Can Get Visitation
Utah Code §30-5-2 addresses the visitation rights of grandparents in Utah, with §30-5-2(1) providing the following:
Grandparents have standing to bring an action in district court by petition, requesting visitation in accordance with the provisions and requirements of this section. Grandparents may also file a petition for visitation rights in a pending divorce proceeding or other proceeding involving custody and visitation issues.
In other words, grandparents have the right to file for custody and visitation, whether a divorce is ongoing on has already been granted, as long as they obey the relevant laws and procedures.
When deciding whether to grant visitation to grandparents, in accordance with §30-5-2(2) the judge will consider the following factors:
- Whether the petitioner (i.e. the grandparent) is a “fit and proper person to have visitation with the grandchild.” This means grandparents might be denied visitation if they have a record of arrests or criminal convictions, particularly a history of domestic violence, child abuse, kidnapping, or drug abuse.
- Whether grandchild visitation has been denied or otherwise “unreasonably limited.”
- Whether the parent is “unfit of incompetent.” Read more about how to prove a parent is unfit.
- Whether the grandparent has previously acted as the child’s “custodian or caregiver… and the loss or cessation of that relationship is likely to cause harm to the grandchild.” As we will explore in greater detail below, the ability to demonstrate this point can be particularly helpful to grandparents who are seeking visitation with their grandchildren.
- Whether the petitioner’s child (i.e. the child’s parent) has either passed away, gone missing for a long period of time, or has become the noncustodial parent through divorce or separation proceedings. (A “noncustodial parent” is simply a parent who does not have sole legal or physical custody. Legal custody refers to the power to make decisions about the child’s life, such as education, healthcare, and marriage. Physical custody refers to where the child will spend most of his or her time living.)
- Whether visitation with grandparents is in the child’s best interests. Above all others, this is the primary standard judges use when granting custody awards. The judge will consider factors like whether the child will have access to basic needs like food and shelter, and whether the child is likely to come to harm or suffer emotional distress because of a certain custody or visitation arrangement.
Impact of the 2013 Jones v. Jones Ruling on Custody Awards
While the provisions of §30-5-2 remain unchanged, in light of a recent court ruling it has unfortunately become more difficult for Utah grandparents to obtain custody under those provisions. In July of 2013, in Jones v. Jones the Utah Court of Appeals ruled that the burden of proof falls on the grandparents to prove there is a valid reason, in the state’s interest, to grant custody to the grandparents.
This means that arguing a single point from the list of scenarios above — such as claiming that visitation has been denied or unreasonably limited — may no longer be as effective as it would have been prior to Jones. This is because making such a claim, alone, does not necessarily prove that granting grandparents custody is in the state’s best interests.
Following Jones, grandparents are under greater legal pressure than ever before to demonstrate that depriving the child of visitation with his or her grandparents would be likely to result in emotional and/or physical harm. If you previously had a custodial relationship with your grandchild, and were acting as their primary caregiver before or during the divorce, it may be easier to persuade the judge that disrupting the relationship would result in distress and harm to your grandchild.
If you’re the grandparent of a child whose parents are filing for divorce in Utah, and you’re concerned about getting custody, family law attorney Darwin Overson can help. To start discussing your family’s situation in a free, completely confidential legal consultation, call (801) 758-2287 today.
