Grandparent Visitation Rights


Question: When a grandchild lives with a grandparent in a stable relationship for a significant period of time, what visitation rights does the grandparent have against the parents?

Answer: This question was answered in a recent Idaho Supreme Court case called Hernandez v. Hernandez. In this case, Husband and Wife had two children together when they divorced. The divorce decree gave primary physical custody to Wife and the Husband received visitation of four weeks in the summer. Wife began struggling with drug addiction and left the children with Grandmother. From that point on, neither parent had much physical contact with the children for a span of approximately six years. Grandmother never petitioned the court to become the legal guardian of the children. After the children had lived with Grandmother for six years, the parents stipulated to an order that gave Husband sole physical custody and Wife some visitation in the summer without informing Grandmother. When Grandmother found out that Husband was going to move the children from Idaho to Texas, she filed her own separate action for custody. As a result of Grandmother's action for custody, she was awarded six weeks of visitation with the children during the summer time at the protest of Husband.

Husband appealed, arguing that the court violated the Due Process Clause of the Fourteenth Amendment of the United States Constitution by granting visitation to Grandmother. In making the decision to grant visitation rights to Grandmother, the court cited I.C. § 32-717(3) which states that "[i]n any case where a child is actually residing with a grandparent in a stable relationship, the court may recognize the grandparent as having the same standing as a parent for evaluating what custody arrangements are in the best interests of the child." Husband argued that because of the U.S. Supreme Court's decision in Troxel, that this Idaho statute is unconstitutional and therefore, Grandmother should have no visitation rights with his children.

In Troxel, the Supreme Court invalidated a Washington statute which allowed any person to petition for visitation rights in any custody proceeding, and that visitation rights could be granted to anyone as long as it was in the best interest of the child. Husband interpreted the ruling in this case to mean that unless the parents are unfit, it is presumed that the parent's decisions regarding custody and visitation are in the child's best interest. Husband alleged that without a finding that the parents were unfit, it puts Grandmother in an equal position to get custody of the children which violates his fundamental rights as a parent.

The Idaho Supreme Court of Idaho, however, disagreed with Husband, and agreed with Grandmother who argued that the Idaho statute is appropriate as long as the court considers the wishes of the parents. Grandmother argued that the statue accounts for parental decision making because the child would not be in a stable relationship with a grandparent unless the parent had allowed that to happen. The court notes that the statute does not give the grandparent and the parent equal substantive rights to the child; it merely allows each of them to have standing in determining what custody schedule would be in the best interest of the child. This allows a grandparent who has lived with the child for a long period of time the ability to inform the court as to what the best interest of the child should be. The Court stated that this is permissible because the grandparent has been intimately involved in the life of the child up to that point at the request of the parent.

In the end, the court considered the best interests of the children, and after considering the strong bond that had developed between the children and Grandmother, the Court determined that it was appropriate and constitutional for Grandmother to have visitation with the children against Husband's wishes in accordance with I.C. § 32-717(3). In short, grandparents who have lived with the child for an extended period of time and who have established a stable relationship may have an argument for visitation if the court finds it to be in accordance with the best interest of the child.