In an ideal world, grandparents' rights would not be an issue at all. Unfortunately, in the very human world we live in, resentments new and old, a desire for family autonomy and shifting family paradigms sometimes lead parents to force their child's grandparents out of their lives.

While grandparents don't actually have the legal right to see that child, what they do have is the right to petition the court for visitation. Sometimes legal action makes matters worse, but sometimes it gives the grandparent precious time with a precious child.

An Activist Is Born
Brigitte Castellano's daughter Nicole divorced when her son Jordan was only 2 months old and moved back in with her mother. Nicole and Jordan lived with Castellano in New York for four years until one day in 1999 when their car was struck by a drunk driver. Nicole lived through the 45-minute ordeal of her and Jordan’s extrication from the car, talking to him encouragingly while he sat in the back seat with two broken arms. Sadly, she died shortly thereafter from her own injuries.

Six days later, Castellano was served with papers ordering her to surrender Jordan to his father in Florida, whom he'd seen only a few times. Castellano was devastated and frantic.

"I thought if I went to court and told the judge the truth, he'd do something to help me," says Castellano. "Instead, he said that since I was just a grandmother I had no right to be there and he fined me $10,000. After that, I went to see anyone I could think of, but no one could help me. The worst part was that the father didn't even want Jordan; he just wanted to give him to his own parents. Finally, I made such a fuss that the father took Jordan and I'm now allowed to see him once every six weeks, but at one point a judge took out a restraining order on me because Jordan would get so upset when we left each other. He said that we were too bonded for this to be in Jordan's best interests."

Castellano went on to found the National Committee of Grandparents for Children's Rights Inc., which has become a clearinghouse for information on grandparents' rights. The members of the organization even travel the country in that age-old manner of the retired – an RV – to spread the word that the world has changed, and grandparents have to set aside their natural reticence and respect for authority to challenge the existing laws.

First, Do No Harm
Going to court for visitation rights of a child is something that rarely has a happy outcome and should be a last, drastic step. Dr. Arthur Kornhaber, founder of the Foundation for Grandparenting and author of The Grandparent Solution: How Parents Can Build a Family Team for Practical, Emotional, and Financial Success (John Wiley & Sons, 2004) says a grandparent should make sure all other avenues are exhausted before taking that step.

"They first have to try all they can to personally talk with the person they have the conflict with," says Dr. Kornhaber. "If that doesn't work, then try to find someone who can intervene that doesn't have their own personal or emotional attachment, such as a mutual friend, a counselor or a pastor or minister."

At those meetings, Dr. Kornhaber says, the grandparent has to bite his or her tongue and be willing to let the parent take the lead. Tolerance and patience, he says, should be the watchword.

Only when all that has failed should court intervention be considered. And even then, says Dr. Kornhaber, mediation is preferred to legal action.

Amy Goyer, coordinator of the AARP Grandparent Information Center, agrees with this recommendation. "One of the first things I recommend is mediation, because often you can work out an arrangement without going through the court battles," says Goyer. "Court is expensive and everyone gets hurt in some way no matter what the outcome is."

The State of Visitation
While criteria varies from state to state on the rights of visitation by grandparents, the following are usually considered:

• The best interest of the child.
• There must be no harm in visiting the grandparents, or the child would be harmed if he or she did not visit the grandparents.
• The prior relationship of the grandparent and grandchild.
• The effect on the parent/child relationship.
• The marital status of the child's parents.
• Whether the parents are deceased, divorced and/or unmarried.
• The child/grandparent relationship after the child is adopted by a stepparent.

The most interesting factors on this list – which comes courtesy of Dr. Kornhaber's Web site – are the first two criteria, because they are changing in a way that is disturbing to those who lobby for grandparents' rights.

"[The AARP is] in favor of the grandparents having the right to petition the court for visitation and for it to be awarded when it's in the best interest of the child," says Goyer. "The problem is that a lot of the new laws are going to a harm standard so now they have to prove it would harm the child if they didn't have visitation. That's much more difficult to do."

Gerard Wallace, director of the Law Institute's Grandparent Caregiver Law Center, works closely with Castellano's organization to lobby legislatures to make it easier for grandparents to stay in the lives of their grandchildren. Most recently, a law passed in the New York State Legislature that gives grandparents broader power to petition for custody and visitation.

An Age Old Problem
Wallace says the absoluteness of parental rights is almost a given in our society, which makes it more difficult for a grandparent who has been shut out.

"There's an 1899 Louisiana case which states that grandparents have a moral right to see their grandchildren but no legal right," says Wallace. "That's the way the law has stayed, but more and more over the past years we've come to recognize that children have rights too, including a right to maintain relationships with those who they have had close relationships in their past."

The problems arise when these "moral rights" come in conflict with the parents' wishes.

According to Richard A. Harris, president of The Harris Law Firm, P.C., which sponsors the Colorado Divorce Information Web site, part of the problem is that our culture doesn't value the elderly, nor do we put enough emphasis on the rights of the child, as opposed to the desires of the adults.

"Along with the increasing rate of divorce, we have a situation where previous intact families are now broken apart, and the fallout from that has spread to the extended family – particularly the grandparents," says Harris. "During a divorce it's easy to project that anger and hate for who you're divorcing onto the spouse's parents, but at the end of the day that's a selfish mentality that works to the detriment of the children."

Want to see more?

• When Parents Divorce: Keeping Communication Alive With Your Grandchildren
• Growing Up With Grandparents: Why You Should Make Your Parents Part of Your Child's Life
• Planting the Seed: Growing Memories With Grandkids
• Talk about it!