A grandparent’s right to visit with a grandchild differs from state to state. In Delaware, grandparent visitation is covered under the third party visitation statutes contained in Title 13, Chapter 24 of the Delaware Code. Delaware’s third party visitation statutes allow for any adult person to petition for third party visitation as long as that person can show a substantial and positive prior relationship with the child. Family members in addition to grandparents (such as aunts, uncles, or adult siblings) can also petition for visitation under the third-party visitation statutes.
It should be noted that a grandparent or third party’s rights regarding a child are subordinate to a parent’s fundamental right to the care, custody, and control of the child. The United States Supreme Court has opined that as long as a parent is fit, that parent has a fundamental right to parent and raise the child, and it is fully within the parent’s right to decide if visitation with a grandparent or third party is in the child’s best interest. This does not mean that hope is lost for a grandparent seeking visitation; rather, the Court gives special weight to a parent’s objection to visitation. The special weight requires petitioning third parties to prove additional factors to obtain visitation with a child.
Before the Court can award third party visitation, the Court needs to find that visitation with the third party is in the child’s best interest. To make that determination the Court looks to the best interest factors contained in the Delaware Code. In addition to visitation being in the child’s best interest, the Court needs to find one of the following for each parent: (1) the parent consents to the third-party visitation; (2) the child is dependant, neglected, or abused in the parent’s care; (3) the parent is deceased; or (4) the parent objects to the visitation, but the adult seeking visitation has shown that the objection is unreasonable and that visitation will not substantially interfere with the parent/child relationship.
Many different events, such as divorce, a parent’s death, or termination of a parent’s rights can drastically alter family dynamics affecting the time a child spends with extended family members. A child should be able to enjoy time with the people who would positively impact that child’s life. To discuss third party visitation in more detail, or if you have any other family law related issue, please call Schmittinger and Rodriguez at (302) 674-0140 to schedule a consultation.