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GRANDPARENT RIGHTS, A NEW CONCERN FOR BABY BOOMERS AND THEIR GRANDCHILDREN

As my generation, "the baby boomers" ages, we are proud to see our children marry, and we relish the prospect of having grandchildren. We have eaten sensibly, exercised, and remain active. We have contributed to 401 K funds in order to enjoy retirement, and we look forward to spending time with our grandchildren! Many of us have fantasized about taking our grandchildren to Disneyworld, or Yellowstone. Sadly, not every marital situation is forever. What do we do if our children separate from their spouses down the road? Do we have rights to visit our grandchildren if our worst fears materialize and our children divorce, or even worse, we outlive the child who was the parent of our grandchildren.

Family Court matters, including grandparent rights, are usually decided in State Courts. However, the United States Supreme Court, surprisingly became involved in this heart wrenching situation, and their ruling has given us some guidance. A majority of the Justices opined that any visitation granted to grandparents, cannot interfere with the parent child -relationship. The United States Supreme Court made it abundantly clear, in the case of Troxel v. Grandville, 530 U.S. 57 (2000 ), that fit parents, are presumed to act in their children's best interest. This is true, even when parents cut their children off from contact with other family members.

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In the Troxel case, Brad Troxel was the father of two children. He was not married to the mother. He brought his two daughters for regular visits with his parents. Brad Troxel died and understandably his parents continued to visit with their grandchildren. Unfortunately, as often happens, the mother of the grandchildren later married and her husband adopted the children. At that time the mother attempted to stop the visits of the Troxel grandparents. The Supreme Court found the Washington visitation statute for third parties, including grandparents was "breathtakingly broad," and further found that, the state, "should not inject itself into the private realm of the family" to question parental decisions.

Minnesota amended their third party custody and grandparent visitation statutes to follow the Troxel case. Minnesota allows grandparents to petition the court for visitation if the parent of an unmarried child is deceased, the visitation is in the grandchild's best interest, and the visitation will not interfere with the parent child relationship. Similarly, a grandparent may move the court for visitation during an action for dissolution of marriage, parentage, annulment, or legal separation. In these situations, there is an inference that there will not be interference by the court with an intact family.

Additionally, if the child has resided with the grandparents for 12 months or more, the grandparent may move the court for visitation rights. In some cases, if both parents become deceased, the grandparents may be in the best position to have custody under Minnesota law. The twelve-month rule also applies for parties petitioning to have custody of minor children that are not their own.

Our law firm represented the paternal grandparents in the case of In Re the Custody of A.V.A., involving grandparents seeking third party custody of their young grandchild whose parents were tragically killed in a car/ truck collision. The Minnesota Court of Appeals, partially basing their opinion on the Troxel case, ruled that the grandparents with whom the minor child lived, prior to her parents tragically dying in a car accident, were the proper parties for custody, as the minor child had spent significant time with them. Two cousins who attempted to obtain custody of the child, were dismissed from the case as they did not have much contact with the child prior to the death of the parents. Our law firm has represented many grandparents and other relatives in similar custody cases where children have lost their parents in accidents or other tragic circumstances.

If you are looking to establish visitation rights with your grandchildren, keep notes of the quality time you spend with them. Keep in mind that visits should not interfere with the parents' relationship with their children. In other words, refrain from criticizing parents when you are with the grandchildren. Obviously if there are serious safety issues child protection should be contacted.

An attorney can help you to present a strong case to the courts as to why your visits would be in your grandchildren's best interest.

Our law firm has experience in this important area of the law. Please call or email us if you are seeking grandparent visitation and/or grandparent custody. We would be happy to assist you in preserving these important relationships with your grandchildren that you cherish!

Barbara N. Nevin, family law attorney, is a mother and grandmother of two precious grandchildren pictured here. Ms. Nevin successfully argued the case of In Re the Case of A.V.A. twice in the Minnesota Court of Appeals. Ms. Nevin's profile is found at our website.

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