What Rights Do Grandparents Have in Utah?
Utah law allows grandparents to seek visitation and even custody with their grandchildren under certain circumstances. This is a complicated area of the law because a series of recent decisions from Utah’s appellate courts have made it increasingly difficult for grandparents to prevail if the parents object unless they can prove their grandkids will suffer “significant harm” unless the court intervenes. There are four major ways for grandparents to acquire visitation or custody rights: (1) guardianship, (2) juvenile court abuse/neglect/dependency proceedings, (3) a grandparent visitation lawsuit, or (4) a custody for persons other than a parent lawsuit.
The simplest way for grandparents to obtain custody of their grandchildren is a guardianship action in district court. This allows grandparents to acquire custody of their grandkids and make important decisions on their behalf as if they were the parents. However, to obtain guardianship under this process the grandparents must obtain written consent from the parents or prove the parents are presently unable to care for the children because they are dead, missing, incapacitated, or have previously had their rights terminated. But if either parent objects to the grandparents having guardianship then the case will likely be dismissed and the grandparents will have to pursue other legal routes to obtain custody or visitation rights.
Juvenile Court Abuse/Neglect/Dependency Action
Another common way for grandparents to obtain custody rights is part of a juvenile court action seeking to declare the parents themselves abusive, neglectful, or unfit. Normally this kind of action is initiated by Utah’s child protective services agency. If the juvenile court finds a parent’s behavior is harming his/her child’s safety then it may award custody to someone else, preferably a close relative like a grandparent, if that is in the child’s best interest. Depending on the circumstances this custody order may be temporary or permanent. Often in juvenile court proceedings the Court will offer the parents what is called “reunification services” to help them fix the problems led to them losing custody in hopes they will eventually reform and the children can be safely returned to their care. If the parent is able to reform to the Court’s satisfaction then the Court may eventually restore custody to them. But in extreme cases the Court may end up terminating the parent’s rights in which case grandparents or other interested relatives may acquire permanent custody of the children.
Custody for Persons Other Than a Parent Act
Utah law allows grandparents to bring an independent lawsuit seeking custody rights over their children under a law called the Custody for Persons Other than a Parent Act. The acquire custody rights a grandparent must show:
(a) they intentionally assumed the role and obligations of a parent; (b) formed an emotional bond and created a parent-child type relationship with the child; (c) contributed emotionally or financially to the child’s well being; (d) their assumption of the parental role is not the result of a financially compensated surrogate care arrangement; (e) continuation of their relationship with the child would be in the child’s best interests; (f) loss or cessation of that relationship would be detrimental to the child; and (g) the parent: (i) is absent; or (ii) is found by a court to have abused or neglected the child.
The last part is typically the most difficult to establish: you have to prove the objecting parent is either missing or has “abused or neglected” the grandchild. This is a high legal standard. It requires more than proving a parent is not making the best parenting decisions. Rather you must show those decisions are likely to result in significant harm to their children (physically or emotionally) unless the court orders custody to the grandparents. However, grandparents can meet this high standard if they come to court prepared with evidence and often expert assistance.
Grandparent Visitation Act
Lastly, Utah has a law that allows grandparents to seek visitation rights. The law says grandparents must generally show: (a) the petitioner is a fit and proper person to have visitation with the grandchild; (b) visitation with the grandchild has been denied or unreasonably limited; (c) the parent is unfit or incompetent; (d) the petitioner has acted as the grandchild’s custodian or caregiver, or otherwise has had a substantial relationship with the grandchild, and the loss or cessation of that relationship is likely to cause harm to the grandchild; (e) the petitioner’s child, who is a parent of the grandchild, has died, or has become a noncustodial parent through divorce or legal separation; (f) the petitioner’s child, who is a parent of the grandchild, has been missing for an extended period of time; or (g) visitation is in the best interest of the grandchild.
However, in the recent case of Jones v. Jones both the Utah Court of Appeals and Supreme Court declared this law unconstitutional except in compelling circumstances where a child would suffer significant harm without court-mandated grandparent visitation.The grandparents in that case had a warm, loving relationship with their grandchild and shared in caregiving responsibilities with the father but never actually assumed the role of a “parent” towards their grandchild. Short of proving the parents unfit, the ruling suggests grandparents would have to show they had served as their grandkid’s primary caregiver and established a parent-like relationship with the grandchildren (as distinguished from a grandparent-child relationship) over a considerable period of time to meet this high standard. Again, grandparents can meet this high standard if they come to court prepared, but it is harder to do so now than in years past.
Call Us Today
Do you need help obtaining grandparent rights or defending against a lawsuit from grandparents? Give the experienced and aggressive attorneys at Wiser and Wiser Family Law a call today at 855-254-2600.