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Ask An Attorney

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QUESTION: MY HUSBAND AND I HAVEN'T HAD ANY TIME WITH OUR GRANDCHILDREN SINCE OUR SON AND HIS WIFE WERE DIVORCED. IS THERE ANYTHING IN THE LAW THAT COULD HELP GRANDPARENTS GET VISITATION TIME? WE USED TO SPEND A LOT OF TIME WITH THEM BEFORE THE DIVORCE.

North Dakota has a statute, 14-09-05.1 It gives rights to grandparents and great-grandparents at least to seek a court order for visitation. There's two ways, if neither parent is letting them have any time with the grandchildren. That indicates that perhaps their relationship with their son is difficult also. Typically, unless there's a great physical distance involved, grandparents often just have time with the grandchildren when the dad is having his parenting time,whatever that might consist of, so the way this question is presented makes me think there may be an estrangement with the son, perhaps.

SO WHAT WOULD THEY NEED TO DO TO MAKE THIS HAPPEN?

First way is probably the less likely of the two: Serve and file an original action asking for visitation rights in county of child's residence. If there's no court that already has jurisdiction, start action against them. If it's their son, they would be filing the action against him. If it's the mom, the action would be filed against her. Both parents have rights that the court would need to address. In this one, they are actually the plaintiffs, and the parent with primary residential responsibility (what we used to call primary physical custody) is the main the defendant.

AND WHAT'S THE SECOND ALTERNATIVE?

The second way (probably applies here) as the question indicates the parents were divorced. If it was a ND divorce, the residential placement of the children remains under court jurisdiction until all of them are of age. Grandparents could bring a motion in this divorce action even though it's not presently an open case; that is, judgment has already been entered.

DOES THE CASE JUST GO STRAIGHT TO A COURT HEARING, THEN?

Possibly, the statute says the court may require mediation. That means the judge doesn't have to order mediation, but the courts - especially nowadays - do favor the parties trying to work out an agreement through a mediator, so it's fairly likely to be ordered. Also, even if mediation fails and the mediator agrees, the court MAY order the case to arbitration (again, that discretionary standard). The statute indicates that the mediator and the arbitrator are the same person--the difference there is that the arbitrator makes an actual decision, like the judge would if they were in court.

ARE THERE ANY CASES WHERE GRANDPARENTS AND GREAT-GRANDPARENTS MIGHT NOT BE ABLE TO USE THIS LAW TO SEEK VISITATION?

If there's been an agency adoption, or if a child has been adopted by someone other than a stepparent or grandparent. In those cases, even if the grandparents had already been to court and been awarded visitation, the court could terminate those rights if they find it's in the best interests of the child to do so.

ASSUMING THAT THEY CAN USE THE LAW, WHAT DO THEY HAVE TO PROVE IN ORDER TO GET VISITATION FROM THE COURT?

There are relatively few ND Supreme Court cases, so not much information there as to how many cases are successful. But there were two cases reported just this spring, so we now know a bit more of what courts are to look for. The court has to definitely find two things from the evidence: first, that grandparent visitation would be in the children's best interests, and wouldn't interfere with the parent-child relationship. Depending on the specific facts involved, that can be a high burden of proof for the grandparents to meet.

WHAT DO YOU MEAN?

For example, in one of the Supreme Court cases from this last spring, the couple had only been married 10 months, he then was sentenced to five years in the penitentiary, and was going to spend another 96 months in the federal penitentiary after he finished his state sentence; meanwhile, his ex-wife moved to Arizona with their daughter and filed an action there to terminate his parental rights, so his mother, living here in North Dakota, would need to show how an ongoing relationship with a very young child who barely knows her would be in the child's best interests. And there isn't even any discussion in the reported case about the impact on the ex-wife's parent-child relationship, which is the other important factor.

WHY WAS THAT?

Unfortunately, the trial judge had put the burden of proof of that factor on the ex-wife, rather than on the husband's mother. In these cases, the burden of proof is completely on the grandparents to prove both factors - that the visitation is in the children's best interests, and that it won't interfere with the parent-child relationship. The trial judge had shifted that burden to the baby's mother, which was incorrect, so the Supreme Court sent the case back to the trial court for further proceedings. I think we lawyers all know at this point what we need to prove in these cases, and which party has the burden of proof, anyway.

YOU MENTIONED THAT THERE WERE TWO CASES THIS SPRING THAT SORT OF GAVE GUIDANCE AS TO THESE CASES. WHAT WAS THE OTHER ONE ABOUT?

Yes, the other Supreme Court opinion was issued the same day with very different facts. Here there were three children born to parents who never married each other, but they definitely presented a united front against his parents when this case came up. The grandparents had a very close relationship with the oldest grandchild, but the relationship with the parents soured as the other two children came along, and there was less time of the grandparents with the two younger ones. The parents began limiting grandparent visitation time, and this action followed. And in this case too, the Supreme Court found that the trial judge had made a mistake in not giving deference to the parents' right, as fit parents, to be the ones to decide how much grandparent time is in their children's best interest. Essentially, what the trial judge had done is to give the grandparents as much time with the grandparents as non custodialal parent would get in a divorce case. This case makes clear that grandparents don't have the same rights as parents do, in case that was ever really in doubt; it isn't any longer.

SO THEY'RE TOUGH CASES, IN OTHER WORDS?

They certainly can be, and in both of these cases from April of this year, the parents actually had moved or were moving out of state. My personal experience with my own grandparents was a great one, but if you get to the point where the legal system has to become involved, you've got children caught in the middle. Two things to keep in mind: burden of proof is going to be on the grandparents to show that the visitation is in the grandchildren's best interests, and that it won't interfere with the parent-child relationship. Often, in the best case scenario, that might translate to trying to improve the relationship with the parents if you can manage it. And that can mean swallowing a lot of things you might have wanted to say, in the interest of keeping your grandchildren a regular part of your life. In the next-best case scenario, your own son or daughter is having parenting time, and you get to have time with your grandchildren at those times. One reported case where parents had reconciled - made it clear that the parents have a fundamental right which is usually superior to any other. But there have been cases where grandparents were even awarded custody--these cases are very fact-specific. The court has to consider the amount of personal contact that has already gone on between the grandparents/great-grandparents and the children and their parents. But if any lack of contact exists that is traceable to non-cooperation by the mom rather than lack of trying by these grandparents, it shouldn't be held against them. More likely, in that case, if the court awards visitation, to start with some supervised time for the children and grandparents to get comfortable with each other. Bottom line: In other words, no guarantees a court action will be successful, but the statute is there to permit people to try for an order, anyway.

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