A question I get every so often revolves around whether grandparents have any right to seek custody or visitation of their grandchildren. Here are a few ways to accomplish that:
- Intervention in a Dissolution
Under Missouri law, grandparents have a right to intervene, that is, to become a party to, a divorce case in order to determine whether the grandparents will receive either visitation or custody of the children that are subject to the case. Further, grandparents have the right to file a motion to modify a dissolution decree where visitation has been denied.
- Intervention in a Paternity Action
While Missouri statues, unlike divorce cases, do not provide a specific statutory right of grandparents to intervene in a paternity action, the Missouri Rules of Civil Procedure do. A grandparent may intervene in a paternity action where the parties (the mother and father) do not adequately represent the grandparents' interests.
Assuming that neither option discussed above is available, a grandparent may file an independent action in the probate court seeking a legal guardianship over a minor. This is generally more difficult than intervening in a pending custody dispute for at least three reasons. First, a grandparent may not use a guardianship to simply assert visitation rights. A guardianship means that, if the grandparent prevails, he or she will have legal custody of the minor child or children. Second, in order to prevail in a guardianship action (assuming the child has a living parent), a grandparent must demonstrate that the living parent or parents are unfit, unwilling, or unable to perform the function of a guardian. Finally, even if a grandparent prevails, it is possible for a parent to become fit, willing, and able to resume the duties of parenthood. When that happens, the parent may petition the court to set aside the guardianship.
The bottom line is that grandparent visitation is tricky business, but the law does provide avenues by which a grandparent may remain involved in the lives of his or her grandchildren. I have handled and currently handle cases like this and I strongly recommend that if you are a grandparent worried about your rights, give us a call.