Tony and Mary have a special bond with their grandson, Caleb. They were there at the hospital on the day that he came into this world, and have spent a lot of time with him ever since. His parents, Phillip, Tony and Mary’s son, and Judy married young. They still enjoyed going out every weekend, and Grandpa and Grandma were more than happy to babysit Caleb for them. Every summer Caleb spent at least a month with his grandparents. As Caleb got older, Tony taught him how to hunt and fish. Caleb loved going camping with his grandparents at their place on the lake. At one point Phillip and Judy experienced some marital difficulties. Phillip moved in with his parents for six months or so, and Caleb came with him. During this time, Tony and Mary were Caleb’s primary caregivers while Phillip got himself and his marriage back together.
The young couple seemed to be doing well. Their finances were improving, and they were arguing a lot less. Phillip had just received a promotion, and Judy finally found work after a long search. Then the accident happened. Phillip was driving back from a business trip. He had just got into town and was in a hurry to get home to Caleb and Judy. The tractor trailer plowed into the driver’s side of his compact car killing him instantly.
Judy was an emotional wreck for three months after Phillip’s death. She could barely take care of herself, much less Caleb. Tony and Mary were, of course, grief stricken by the loss of their son, but were nonetheless there to care for Caleb while Judy was unable to do so. Finally, Caleb went back to live with his mother. He told his grandparents that she had changed. She seemed very distant and detached. Six months after Phillip died, she remarried. Caleb said that the man did not have a job. He stayed at the house all day playing video games and drinking beer. Caleb did not like him.
Judy started to make excuses why Tony and Mary could not see Caleb. He was spending the night with a friend. He had too much homework to do. Judy, her new husband and Caleb were going out of town. Caleb told his grandparents that none of these things were true. He said that he thought that Judy’s husband did not want her or Caleb to have anything to do with Phillip’s family.
Finally, Judy told Tony and Mary that she did not think that it was a good idea for them to see Caleb anymore. Tony and Mary called their family attorney. Surely the courts would protect and preserve their relationship with Caleb. Will they?
There are three situations under Ohio law where grandparents may seek a court order for visitation, or as it is also referred to, companionship, with their grandchildren. The death of a parent, such as is the case with Tony and Mary, is one. Another situation is when the child is born to an unmarried mother. Finally, during a divorce, dissolution, legal separation, annulment, or child support proceeding, grandparents may petition for visitation, or after a final decree is issued in the legal proceeding.
In all of the above three situations, the court may only grant grandparent visitation if it finds that such is in the best interest of the child. The court, in determining best interest, must consider sixteen (16) statutory factors. Among those factors, found in Ohio Revised Code section 3109.051(D), include the child’s prior relationship and interaction with his parents, siblings, grandparents, and other relatives. Other factors are the child and parents’ available time for visitation, the child’s age, and his/her adjustment to home, school and community.
Additionally, the court may privately interview the child, and if it does so, must consider the child’s wishes regarding visitation. The health and safety of the child and the mental and physical health of the parties are also factors to be considered by the court. Another factor the court must consider is whether the grandparent has committed any act resulting in harm to a child or family or household member.
The most important factor, however, in determining whether or not it is in a child’s best interest to visit with a grandparent is the wishes and concerns of the child’s parents. The Supreme Court of Ohio and the Supreme Court of the United States have made it clear that, absent unusual circumstances, a parent’s wishes regarding his or her child is paramount, and must be given special weight in a proceeding where a grandparent or other relative seeks to have a relationship with a child, contrary to the wishes of the parent.
So, will Tony and Mary be granted the right to the companionship of their grandson over the objection of his mother? They certainly have many factors in their favor. Their story is a compelling one that tugs at the heart strings. As an attorney, I would gladly represent them in court. However, I would be compelled to advise them that the outcome in their case is far from certain, given the state of the law as it exists at this time.