by Attorney Eric D. PuryearGrandparents are often very involved with grandchildren, and those bonds that are formed can be meaningful to both the grandparent and grandchild. In many situations, events will occur that result in the child’s parent or parents no longer allowing the grandparent to see the child. Depending upon the circumstances, there may or may not be legal action that the grandparent can take to stay in the child’s life in Iowa.
As a staring point, Iowa Code section 600C.1 provides that grandparents (and great-grandparents) can seek visitation through the Iowa courts. That code section sets forth the various standards that must be met by a grandparent to obtain visitation when a parent is not in agreement:
1. The grandparent or great-grandparent of a minor child may petition the court for grandchild or great-grandchild visitation.
2. The court shall consider a fit parent’s objections to granting visitation under this section. A rebuttable presumption arises that a fit parent’s decision to deny visitation to a grandparent or great-grandparent is in the best interest of a minor child.
3. The court may grant visitation to the grandparent or great-grandparent if the court finds all of the following by clear and convincing evidence:
a. The grandparent or great-grandparent has established a substantial relationship with the child prior to the filing of the petition.
b. The parent who is being asked to temporarily relinquish care, custody, and control of the child to provide visitation is unfit to make the decision regarding visitation.
c. It is in the best interest of the child to grant such visitation.
However, matters are complicated by the United State Supreme Court’s ruling in Troxel v. Granville (530 U.S. 57). In that decision, the Supreme Court ruled that “the interest of parents in the care, custody and control of their children–is perhaps the oldest of the fundamental liberty interests recognized by this Court” as it declared grandparent visitation laws can be unconstitutional as they may violate the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. In that case, the Supreme Court struck down the Washington state grandparent visitation law. The same considerations that applied in Troxel apply to Iowa grandparent visitation petitions.
In situations where grandparent visitation cannot be obtained, it may be possible to obtain guardianship of a grandchild when the parent is not able to properly care for the child. As examples, I have represented grandparents in guardianship cases where the grandparent wished to obtain guardianship of their grandchild due to the mother being addicted to drugs, or the father being incarcerated. Such guardianships can allow a grandchild to be placed with a grandparent, rather than foster care, so that the child can be cared for by a loving relative who they have known.
A grandparent who is interested in seeking visitation with their grandchild is facing an uphill battle, due to the current state of the law when it comes to grandparent’s rights. However, that is not to say that visitation cannot be obtained, or that there is not an alternative solution (such as a guardianship). Consulting with an attorney is the first step in attempting to address grandparent visitation or a guardianship.