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Ask Our Lawyer - July 2002

Q: I’ve been divorced for several years and my children and I have always spent part of their summer and Christmas holiday visiting my parents. I think its very import for them to have this family time and they love going to see Grandma & Grandpa. If something were to happen to me, do my parents have a right to ask that these visits continue?

A: I applaud your efforts to keep these family ties strong in the face of divorce. Studies have shown that maintaining nurturing family relationships is important to the healthy emotional growth of all children but especially significant in the case of divorce. Your custody rights were made a legal part of your divorce decree or support order. You, and your ex-spouse/partner each make choices about how you and your children will spend the time you have together. You have chosen to include your parents and other family members in your visitation periods with your children. Your ex-spouse/partner has probably made similar choices regarding her own family. In the event of the death of a parent those visitation rights do not transfer to anyone.

State laws differ as to the rights of family members, other than parents, concerning visitation rights. Some address it only in the context of the death of a spouse/partner. Your best course of action is to consult with an experienced family law attorney in your area. Illinois used to have a specific statute that provides for reasonable visitation by a minor child’s grandparent, great-grandparent, or sibling, under certain circumstances, such as where one parent has died and when it is in the best interests and welfare of the child. Indiana and Ohio currently have a similar statute. Before you get too excited, be aware that the Illinois statute has recently been found unconstitutional by the Illinois Supreme Court. Because the language of the statute allowed the judge hearing the custody/visitation issue to decide whether such visitation is in the “best interest of the child,” the statute was deemed to infringe on the custodial parent’s right to determine with whom their child associated. Additionally, a recent United States Supreme Court opinion raises doubts about all grandparent visitation statutes, so you need to check with an experienced family law attorney.

Litigation over family issues can be a long process and, as attorneys involved with recent Illinois & Washington cases, tend to involve other family issues not actually before the Court. The death of a spouse/ex-spouse can leave the surviving spouse up against relatives who may have their own agenda in pursuing visitation rights. Unfortunately this can become a power struggle between adults who may see things being done in a way they don’t approve of or a parent who kept the peace and tolerated relatives when their spouse was alive but doesn’t see the need to do that any longer. It becomes a case of winning for the adults rather than true concern for the well-being of the children. Their recommendation is to establish and maintain the best relationship possible with your ex-spouse/partner and both sides of the extended family so your children don’t end up losing more family connections in a bitter and expensive court battle in the event of your death.

If you have any questions you would like to ask the lawyer, please submit them to: ASK OUR LAWYER, P.O. Box 2850, Indianapolis, Indiana 46206-2850.