Grandparent Rights: Part 2

Grandparent Guardianship Rights Part 2
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Child custody and visitation disputes typically involve a child’s parents, but not always. Grandparents are a valued addition to the family dynamic and can very often be a great help with child rearing.

Grandparents should be given the opportunity to visit and create meaningful relationships with a grandchild if, in doing so, the child benefits from the relationship. Parents are normally the ones to dispute custody of the child, but it is not uncommon for grandparents to also petition for visitation rights.

Grandparents can petition for visitation rights regardless of the status of the child’s parents, and, generally speaking, the courts give substantial deference to a fit parent’s decision of what is best for their child when weighing whether to grant grandparent’s visitation rights.

To be awarded visitation rights, a grandparent must present “clear and convincing evidence” to the court of an unfit parent. Grandparents may likewise win visitation rights if they are able to prove with “clear and convincing evidence” that contact with the grandparents is in the best interest of the child.


To make their determination, a court will consider what the children’s parents want and will look at why the parents don’t wish the grandparent to visit the children. As there is a strong presumption that the wishes of the parents are truly in the best interests of the child, it can prove very challenging for a grandparent to obtain a favorable ruling from the court, primarily because each case is fact specific, and the burden is on the grandparent to prove they indeed deserve visitation rights.

If the unthinkable happens, and a court decides that the grandparents are not necessary to the happiness and success of the grandchildren, then several issues should be addressed.

First, it is important to stay calm and maintain as much positive contact as possible between the parents of the children. In the event the parents don’t permit telephone contact, then emails and old-fashioned letters may well be the only avenues of open communication.

Second, in Montana, petitions for permitting grandparent visitation with grandchildren cannot be presented to the court more than once every two years, unless a significant change in the circumstances of the child, the child’s parent, guardian, custodian, or the child’s grandparent occurs, making it sufficient for the court to consider hearing a petition anew.

If you are a grandparent who is being denied visitation with your grandchild, contact a Montana family law attorney to learn more about your rights.


Today it is more and more common for grandparents to care for children. Grandparents are frequently the first and best option for children needing a secure and stable environment in which to thrive.

In a legal setting, when grandparents believe their grandchildren may not be in the best situation at home, and if abuse, neglect, or imminent danger exists, grandparents may petition the court for legal guardianship of the child.

This effort is challenging, particularly if both biological parents are still alive and maintain custody of the children.

Here, the grandparents must prove that both parents are unfit to care for the child, and that the grandparents’ home will be a safer and more positive environment for the children.

Where the parents may be unwilling or unable to parent effectively, grandparents may undertake efforts to obtain custody or guardianship of their grandchildren.

Under the proper circumstances, grandparents may be entitled to physical and/or legal custody of the grandchildren. Where the court permits the grandparents to obtain guardianship over the grandchildren, a legal relationship between the child and guardian is established in the eyes of the court, and the grandparent-guardian assumes many rights and responsibilities of the children’s parents.

Another possibility for grandparents is to adopt a grandchild, either when the children’s parents provide consent or if a court determines that sufficient lawful reasons support the ending the rights of the parents.

If you are a grandparent who wishes to explore your options as related to a guardianship or adoption of your grandchildren, contact a Montana family law attorney to learn more about your rights. MSN