The Utah statute governing the visitation rights of grandparents is one of the more plainly readable statutes. It provides real guidance as to how the courts view grandparents, or a grandparent, petitions for visitation when visitation has been unreasonably withheld (allegedly) from the grandparents by a minor child’s parents. While it is presumed that the parent’s decisions regarding grandparent visitation are reasonable that presumption can be rebutted with a proper showing of the factors shown below in the statute. It is important that a carefully drafted petition and affidavit demonstrate any of the listed factors and, most importantly, that the requested grandparent visitation is in the best interests of the grandchild.
The specific statute governing grandparent visitation is found at Utah Code Annotated 30-5-2 and reads as follows:
30-5-2 Visitation rights of grandparents.
Grandparents have standing to bring an action in district court requesting visitation in accordance with the provisions and requirements of this section.
The district court may grant grandparents reasonable rights of visitation, if it is in the best interest of the grandchildren, in cases where a grandparent’s child has died or has become a noncustodial parent through divorce or legal separation.
In cases other than those described in Subsection (2), a grandparent may petition the court for reasonable rights of visitation with a grandchild. The court may enter an order granting the petitioner reasonable visitation rights in accordance with the provisions and requirements of this Subsection (3). There is a presumption that a parent’s decision with regard to grandparent visitation is reasonable. The court may override the parent’s decision and grant reasonable visitation rights to a grandparent if it finds that:
(1) it is in the best interest of the grandchild;
(2)the petitioner is a fit and proper person to have rights of visitation with the grandchild;
(3) the petitioner has repeatedly attempted to visit the grandchild and has not been allowed to visit the grandchild as a direct result of the actions of the parent or parents;
(4) there is no other way for the petitioner to visit the grandchild without court intervention; and
(5) the petitioner has rebutted the presumption that the parent’s decision to refuse or limit visitation with the grandchild was reasonable.
There is a presumption that adoption of a child, voluntary or involuntary termination of parental rights, or relinquishment to a licensed child placing agency terminates all rights of a grandparent to petition for visitation under this section. That presumption may be rebutted if the court finds that a child has established a relationship with the grandparent, and that the child’s continued contact with the grandparent will be in the best interest of the child.
Nothing in this Subsection (4) affects visitation rights of a grandparent that have been ordered by a court pursuant to this section, if the grandchild is adopted by the grandchild’s stepparent.
It should be noted that Grandparents who petition for visitation rights must prove that they are “fit and proper” to continue visiting with the child, and that visitation would not cause the child harm. Grandparents with a history of alcohol or substance abuse, neglect or abuse (related or unrelated to the child) or who have a significant criminal history may be deemed unfit.
Author: Isaac Morely Esq, UT