There is a special bond between grandparents and grandchildren. When this bond breaks, it can be harmful to the children. So are there any legal remedies available that guarantee grandparents visitation rights?
Yes, Louisiana law gives grandparents the right to reasonable visitation with their grandchildren in certain situations.
Many grandparents want to see their grandchildren as much as possible; however, sometimes, the parents throw up roadblocks. In Louisiana, there are laws available to grandparents to break through these roadblocks.
Lousiana Statutes Governing Grandparents Visitation Rights
In Louisiana, three statutes control the visitation rights of grandparents, they are La. revised statute 9:344, Louisiana Civil Code Article 136, and Art. 1264 of the Louisiana Children’s Code.
La. R.S. 9.344
La. R.S. 9:344 is entitled: Visitation rights of grandparents and siblings. It enumerates specific instances in which visitation can be asserted for visitation by nonparents.
This statute doesn’t mandate visitation but provides that grandparents may have reasonable visitation rights. Further, the court retains the discretion to make its decision based on the best interests of the child.
The statute first covers instances when one of the partners of the marriage dies, or is interdicted, or incarcerated. Then the parents of the deceased, interdicted, or incarcerated may have reasonable visitation rights with children of the marriage.
Note that the occurrence must happen during the marriage, and is only available to the parents of the deceased, interdicted, or incarcerated party. Paragraph B applies the same principles when parents are living together as husband and wife without being legally married.
In paragraph D, the statute states when parents of a minor have lived apart for six months, in extraordinary circumstances, the grandparents or siblings may have reasonable visitation, if the court determines it to be in the best interest of the minor child.
Louisiana Civil Code Article 136
Under Article 136 of the Civil Code grandparents may be granted “reasonable visitation” if the parents of the child are not married or cohabitating as married persons or if the parents of the child have filed a petition for divorce:
Under extraordinary circumstances, the statute provides that other relatives can seek visitation with the child. The court will consider the “best interest of the child” when making its decision.
Prior to granting visitation under Article 136, the court must consider the following:
- A parent’s constitutional right to privacy to decide for their children and the presumption that a parent acts in their child’s best interest.
- The quality of the relationship between the grandparents and the child;
- Will the child benefit from the grandparent’s interaction? Does the child need additional oversight?
- If the child is old enough, then the preference of the child should be taken into consideration;
- The overall mental and physical health of all parties;
DIFFERENCES BETWEEN STATUTES
In the event of a conflict between the two articles, then R.S. 9:344 supersedes R.S. 136. R.S. 9:344 allows grandparents to petition the courts when they believe the family is in distress. This statute allows the grandparents to provide additional resources for their grandchildren.
Article 136 is designed to protect a child from the further disruption of their lives. If the two statutes conflict with each other, R.S. 9:344 is the controlling authority over Article 136, which makes sense as the first is geared toward protecting the child.
Courts interpretations of Grandparents visitation rights
Parents have a constitutional privacy right to raise their children how they see fit and are presumed to act in their children’s best interest. To overrule a parent’s decision, the state interest must be compelling, narrowly drawn, and not unduly intrusive of parental rights. Reinhardt, 97-1889 at pp. 4-5, 720 So.2d at 80-81.
The U.S. Supreme addressed this issue in the case of Troxel v. Granville, 530 U.S. 57. In this case, the Justices recognized a parent’s right to decide what is in the best interest of their child. And the court pointed out that simple disagreements over the amount of visitation would not be sufficient to outweigh the rights of a parent.
When courts apply either Civil Code art. 136 or La. R.S. 9:344 they must balance the state interests against a fit parent’s constitutionally protected fundamental right of privacy to raise their child as they deem appropriate. See Wood v. Wood, 835 So.2d 568 (La. App. 2002)
How does adoption affect grandparents visitation rights
Art. 1264. Post-adoption visitation rights of grandparents are limited. This statute provides that the parents of a deceased party may have limited visitation only if they didn’t forfeit that right by failing to object to the adoption.