Grandparents Who Seek Visitation Over Parental Opposition Have a Tough Legal Hill to Climb
by
Joseph C. Maya on Mar. 27, 2024
Summary: Can grandparents get visitation rights to their grandchildren even if the child’s parents oppose such visitation? The answer is yes, but not without a tough standard to overcome. In 2002 the Connecticut Supreme Court handed down a landmark decision in Roth v. Weston. The Court held “a rebuttable presumption [is created] that visitation that is opposed by a fit parent is not in a child’s best interest.” “In sum, therefore, we conclude that there are two requirements that must be satisfied in order for a court: (1) to have jurisdiction over a petition for visitation contrary to the wishes of a fit parent; and (2) to grant such a petition.” Roth v. Weston, at 234.
Roth’s Jurisdictional and Evidentiary Standard
The court in Roth then set forth both a jurisdictional and evidentiary standard: “First, the petition must contain specific, good faith allegations that the petitioner has a relationship with the child that is similar in nature to a parent-child relationship. The petition must also contain specific, good faith allegations that denial of the visitation will cause real and significant harm to the child … The degree of specificity of the allegations must be sufficient to justify requiring the fit parent to subject his or her parental judgment to unwanted litigation. Only if these specific, good faith allegations are made will a court have jurisdiction over the petition.” Id.
“Second, once these high jurisdictional hurdles have been overcome, the petitioner must prove these allegations by clear and convincing evidence. Only if that enhanced burden of persuasion has been met may the court enter an order of visitation. These requirements thus serve as the constitutionally mandated safeguards against unwarranted intrusions into a parent’s authority.” Id. at 234–35.
This much stricter standard puts the parents’ right to make decisions for their child above all else. Later, “Public Act 12–137 codified Roth’s jurisdictional and evidentiary standard in § 46b–59, and additionally expressed various factors to guide the court in its decision making. The current version of § 46b–59 now enumerates factors for the court to take into consideration.” Miller v. Voisine, 2013 WL 1800414.
Assessing a Parent-Like Relationship
The statute states in relevant part: “(c) In determining whether a parent-like relationship exists between the person and the minor child, the Superior Court may consider, but shall not be limited to, the following factors:
- The existence and length of a relationship between the person and the minor child prior to the submission of a petition pursuant to this section;
- The length of time that the relationship between the person and the minor child has been disrupted;
- The specific parent-like activities of the person seeking visitation toward the minor child;
- Any evidence that the person seeking visitation has unreasonably undermined the authority and discretion of the custodial parent;
- The significant absence of a parent from the life of a minor child;
- The death of one of the minor child’s parents;
- The physical separation of the parents of the minor child;
- The fitness of the person seeking visitation; and
- The fitness of the custodial parent.”
Specific to grandparents, the statute further states “(d) In determining whether a parent-like relationship exists between a grandparent seeking visitation pursuant to this section and a minor child, the Superior Court may consider, in addition to the factors enumerated in subsection (c) of this section, the history of regular contact and proof of a close and substantial relationship between the grandparent and the minor child.” Id. at 8.
This standard is often tough to overcome by a grandparent. The legislature’s purpose when enacting this statute was to protect a parent’s right to raise their children and prevent unwanted intrusion that could be detrimental. But, this is not an impenetrable wall. If a grandparent can show a history of regular contact, demonstrating a substantial relationship in which continuation would be in the best interests of the child, a court will allow visitation despite parent objection.
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