In general, parents have almost total authority over who can spend time with their children. However, Ohio law allows courts to award grandparents visitation and custody rights in certain limited circumstances.
The issue of grandparent’s rights typically arises in one of the following situations: (1) your child is still married to your grandchildren’s other parent, and they will not let you visit; (2) the grandchild’s parents terminate their marriage; (3) your child is deceased and the other parent of your grandchildren will not let you see them; or (4) a child is born to an unmarried woman and the grandparents want visitation rights.
The existence of one of these situations does not guarantee that you will be granted rights to visit or have custody of your grandchild, but it does open the door for the court to consider it.
In many situations involving grandparents rights, a court case has already been opened, often due to a divorce, a child support matter, or a paternity case. If there is an open case involving your grandchildren and you want to establish rights to have visitation with them, you must file a motion in the existing case asking the court to grant you those rights.
If no case concerning your grandchildren has been opened and your grandchildren’s parents are unmarried, you will need to file a complaint requesting visitation or companionship rights in the Court of Common Pleas where your grandchild lives. These cases are filed in the division that handles matters between unmarried parents, which in most cases will be the Juvenile Division.
Once you file your motion or complaint, the court will determine whether you are eligible for visitation and whether visitation is in the best interests of the child. Specifically, in determining whether to grant visitation or companionship rights to a grandparent, the court must consider the following factors:
Just because you have an order granting you visitation rights does not mean it will be respected. When a parent refuses to honor a court order for visitation, you may need to file a motion for contempt with the court that granted the visitation order. Doing so is likely to further erode your relationship with the grandchild’s parents and possibly your grandchild. But it may be the only way to enforce your rights to spend time and maintain your relationship with your grandchild.
Sometimes, establishing visitation rights with a grandchild is not enough. If you believe your grandchild is living in an unsafe or unstable situation, you may wish to seek custody. While it is possible for a grandparent to be granted custody of a grandchild, it is not easy.
Before a court will award custody to a non-parent, you must show that the parents are unfit. This is typically accomplished by showing that the parents have abused or neglected a child. To seek custody of a grandchild, you must show that both parents are unfit. A parent may be found unsuitable if they have abused or neglected the child, are habitually drunk, are a habitual drug user, or have abandoned the child. Then the court will evaluate whether granting a grandparent custody is in the child’s interest.
In some situations, you may only need to care for your grandchildren for a limited period of time. When the child’s parents agree, they can complete a Power of Attorney that grants a grandparent authority to make decisions regarding the child. If you are taking full-time care of your grandchildren, you can complete a Caretaker Authorization Affidavit. It will allow you to make decisions about your grandchild's school and healthcare.
These documents authorize a grandparent to be legal caretakers of their grandchildren without filing for legal custody, which requires a determination about the fitness of the parents.
Asserting grandparents' rights is a complicated and nuanced area of the law. The family law attorneys at RKPT are here to help. We will analyze your situation, offer advice and legal counsel, and help you navigate this sometimes challenging situation.
