Grandparents are not given leading rights over the child. Because they are considered third party, parents have rights first, unless they are seen unfit. However, if there is evidence of grandparent abuse or if there is opposition of grandparent visitation/custodial rights, the Court may deny rights.

With everything engrossing a divorce, grandparents can get nastily engaged in a custody battle, but it is recommended to amicably work things out not via court. In addition, grandparents can be remedial in easing the pain. If the grandchild is accustomed to their presence, it is best to maintain a similar pattern of child-grandparent relationship1.

Roughly 20 states have "restrictive" visitation statutes,so that only grandparents can get a court order for visitation, and then only if the child's parents are divorcing or if one or both parents have died. This leaves it very difficult for the grandparents to gain child custody or visitation rights. However, most states have more permissive visitation laws that allow courts to consider a visitation request even without the death of the parents or divorce, so long as it serves as the best interestsof the child.

Both restrictive and permissive visitation statutes have been challenged in court by parents who argue that the laws are an infringement on parents' rights to raise their children as they see fit. Courts have made contradictory rulings.

In the year 2000, the U.S. Supreme Court tackled grandparent visitation rights. In the case of Troxel v. Granville, 530 U.S. 57 (2000), the Court reviewed case from Washington State that struck down a grandparent-visitation statute. The Supreme Court agreed that parents have a fundamental right to make decisions about raising their children, but it did not agree that the visitation statute was unconstitutional nor that allowing a nonparent to petition for visitation rights would amount to an assault on the integrity of the family unit.

However, the Supreme Court did say that the lower court applied the statute incorrectly. The judgement was made on the assumption that the grandparents' request was made in the child's best interst, not that the parent was acting in their best interest. The state judge concluded that visitationshould be granted unless the mother could prove that the additional visits would have an adverse or negative effect on the children. The Supreme Court thought that this approach did not adequately protect a parent's fundamental right to make decisions for her children.2