Grandparent Visitation Rights Explained by Salina, Kansas Family Law Attorneys

Grandmother with Toddler Grandchild - Hampton & Royce, L.C.

A close relationship between a grandparent and grandchild benefits both the child and the grandparents. Kansas law recognizes that fact. If family issues interfere with grandparent visitation, the grandparents may ask the court to grant visitation rights through a legal proceeding. However, specific requirements and rules apply to court decisions relating to grandparent visitation rights.

Kansas Statutes on Grandparent Visitation Rights

Kansas laws permit a court to grant visitation rights to grandparents. Section 23-3301 of the Kansas Family Law Code authorizes district courts to grant visitation rights for an unmarried minor child if the court makes two findings:

  • The visitation rights are in the child’s best interests; and
  • A substantial relationship exists between the grandparents and the child.

This provision extends to situations in which the child’s parent (who was the child of the grandparents) is deceased, the surviving parent has remarried, and the surviving parent’s new spouse adopted the child.

To satisfy the statutory requirements, grandparents pursuing a legal action must present evidence in court for the judge to make findings. Whether the evidence is sufficient to satisfy the requirements will be determined by the court.

Court Considerations in Grandparent Visitation Cases

In addition to the criteria included in the state statute, prior decisions of Kansas courts establish specific rules that apply to grandparent visitation cases. These rules apply under the principle of stare decisis (Latin for “to stand by things decided”), under which courts look to prior court decisions as precedent in drawing legal conclusions in current cases.

Attorney Tisha Morrical, an experienced family law attorney at Hampton & Royce, successfully represented one of the parties a significant court case involving grandparent visitation rights. That decision continues to guide Kansas courts today.

In the case, the Kansas Court of Appeals reviewed a district court decision regarding visitation rights of a child’s grandparents. At the trial, both parties introduced substantial evidence about the surrounding circumstances. The grandparents wanted a visitation schedule different from the schedule proposed by the grandchild’s mother (the grandparents’ daughter-in-law). The child’s father (son of the grandparents) was deceased.

At the conclusion of the trial, the judge ordered modification of the visitation schedule proposed by the child’s mother. On appeal, the Kansas Court of Appeals sent the case back to the trial court for further proceedings consistent with rules established in the Court of Appeals opinion.

In the case opinion, the Court of Appeals — guided by decisions of the United States Supreme Court and Kansas Supreme Court — established several critical rules that now apply in grandparent visitation cases throughout Kansas. In reviewing the trial court's order and interpreting the statutory provisions (which at the time were in a different section of state law but identical to the current statute), the Court of Appeals established these guiding principles:

  • The burden of proof is on the grandparents to demonstrate that a substantial relationship exists and that visitation is in the child’s best interests.
  • Third party visitation permitted under state law affects a parent’s constitutional right to control a child’s upbringing. Therefore, the trial court must construe the statute narrowly and give deference and significant weight to the wishes of a fit parent in determining a grandparent visitation plan.
  • In the absence of a finding that the parent’s plan is unreasonable, the trial court must presume that the parent is acting in the child’s best interests and refrain from substituting its own judgment for that of the parent.
  • Absent a finding of unreasonableness, the trial court should adopt a grandparent visitation plan proposed by the child’s parent.

On reconsideration, the trial court upheld the visitation schedule proposed by the child’s mother based on the rules established by Court of Appeals. These same rules apply to all Kansas district court cases involving grandparent visitation rights.

Legal Proceedings for Grandparent Visitation Rights

In any situation, the best solution to differences over grandparent visitation rights involves reaching a mutually agreeable schedule. In reality, that is not always possible.

Depending on the circumstances, grandparents can pursue a legal action for visitation rights in one of two ways. If there is a pending divorce or paternity proceeding, the grandparents can file a Motion to Intervene, along with a Motion for Grandparent’s Rights. If there is not a pending case, the grandparents can file a Petition for visitation in the district court where the child resides.

For a number of reasons, representation by experienced legal counsel is strongly recommended if grandparents pursue either of these actions. A court case for grandparent visitation rights involves significant procedural and substantive legal issues. The process involves compiling and introducing evidence in a court hearing, as well as countering evidence offered by the opposing party. Knowledge of all the legal issues, local court processes, and required procedures is essential in pursuing a court action.

What To Do If You Face Problems With Grandparent Visitation

Whether you are a grandparent dissatisfied with a visitation schedule or a parent struggling to resolve grandparent visitation issues, talking with an experienced family law attorney is the best way to discuss your concerns and get answers to your questions. The laws on grandparent visitation are complex. Figuring out how the laws apply in your unique situation requires the assistance of a knowledgeable lawyer.

The factual circumstances are extremely important in any grandparent visitation case. Only a lawyer experienced in grandparent visitation cases can analyze your specific situation in light of the laws and legal rules that apply.

Talk With Our Experienced Salina, Kansas Family Law Attorneys

If you face any issue involving grandparent visitation rights — or if you need assistance with any type of domestic or family law issue — our respected Salina, Kansas domestic and family law attorneys at Hampton & Royce, L.C. are here to help. We serve clients throughout the state. Contact us to schedule a consultation.

Categories: Family Law