Custody

Grandparent Rights in Nevada

The “Grandparent Rights Statute” is the law in Nevada

I am often told by client’s that they were told by another attorney or a state agency that there are no grandparent rights in Nevada. That is not technically true, but grandparent rights are very difficult to obtain and you must have a very specific set of factual circumstances to seek grandparent rights.

Even then, chances of success (again depending on the facts) are minimal.

The United States Supreme Court also issued an opinion on this issue, which resulted in a mass overhaul of statutory changes in many states in regards to grandparents rights, including Nevada. See Troxel v. Granville, 530 U.S. 57 (2000). This case significantly reduced grandparent visitation rights across the country.

NRS 125C.050, also known as the “Grandparent Rights statute”, is the law in Nevada in regards to grandparents rights. This statute actually applies to any third party seeking visitation of a minor child, not just grandparents. As a baseline, your right to visit with a minor child flow through the access granted to you by the parent, and specifically your child as the parent (if you are a grandparent), the parent on your side of the family, is you are an aunt or other family member. If you are granted access through the parents, you have no basis for a grandparent’s rights petition.

So, if you want to seek visitation rights of a grandchild (or a minor child and you are not the parent), you must show that you are being denied visits, or extremely limited visits, with the child. Note that if both parents are alive and their parental rights have not been terminated, and both parents agree to not allow you access to the child, you essentially have no case. NRS 125C.050 does not allow for a petition for grandparents rights in this situation. This is also based upon the Troxel v. Granville case. Parental decision making trumps in this scenario.

So, in addition to being denied access to the child, you have to further show that your being denied access is something other than the parent with whom your rights flow is not just denying you access. In other words, the parent with whom your rights flow must either be deceased, their parental rights are terminated, or they are separated or divorced from the other parent, and by virtue of the custody order in place that parent has no or very limited visitation with the minor child. It is now the other parent who is denying you access to the child.

As an example: your son’s rights were terminated or he is no longer living, and the mother is refusing to allow you to have contact with your grandchild. You may have a basis to petition for grandparents rights. The other, more common, but more difficult scenario, is your son has supervised visitation once a week for 2 hours only and mom is refusing to allow you to have any other visits with the grandchild.

NRS 125C.050 also permits a third party with whom the child has resided and who has created a meaningful relationship with to petition for visitation rights, regardless if they are related to the child. This is more uncommon, but I have seen it used in cases where a father raises a child as his own in his home (something thinking it is his child when it may not be), and then mom moves out and denies him any contact with the child. While he legally has no rights as he is not the legal father, he could petition for visitation under this statute.

If any of the examples above are your situation, you have met the first two prongs required under NRS 125C.050 and may have a basis to petition for visitation rights.

Now, comes proving your case. NRS 125C.050 states that if the parent of the child is denying or unreasonably restricting the third parties’ visitation with the child, there is a rebuttable presumption that visitation is NOT in the child’s best interest. Parental rights are very strong and the law defers to the decision of the parents as far as who the child is permitted to see.

However, the law also recognizes that perhaps in some cases the decisions are based upon emotion and not necessarily what is best for the child, i.e. you did not have the best relationship with your son’s ex, and after he passed away, mom is denying visits only because she does not like you; not because you are danger to the child.

The statute then lists multiple factors the court is to consider in determining whether third party visitation is in the child’s best interest. Those factors are as follows:

6. In determining whether the party seeking visitation has rebutted the presumption established in subsection 4, the court shall consider:

(a) The love, affection and other emotional ties existing between the party seeking visitation and the child.

(b) The capacity and disposition of the party seeking visitation to:

(1) Give the child love, affection and guidance and serve as a role model to the child;

(2) Cooperate in providing the child with food, clothing and other material needs during visitation; and

(3) Cooperate in providing the child with health care or alternative care recognized and permitted under the laws of this State in lieu of health care.

(c) The prior relationship between the child and the party seeking visitation, including, without limitation, whether the child resided with the party seeking visitation and whether the child was included in holidays and family gatherings with the party seeking visitation.

(d) The moral fitness of the party seeking visitation.

(e) The mental and physical health of the party seeking visitation.

(f) The reasonable preference of the child, if the child has a preference, and if the child is determined to be of sufficient maturity to express a preference.

(g) The willingness and ability of the party seeking visitation to facilitate and encourage a close and continuing relationship between the child and the parent or parents of the child as well as with other relatives of the child.

(h) The medical and other needs of the child related to health as affected by the visitation.

(i) The support provided by the party seeking visitation, including, without limitation, whether the party has contributed to the financial support of the child.

(j) Any other factor arising solely from the facts and circumstances of the particular dispute that specifically pertains to the need for granting a right to visitation pursuant to subsection 1 or 2 against the wishes of a parent of the child.

The party seeking visitation must rebut the presumption against visitation by clear and convincing evidence (which is a higher standard that preponderance of the evidence, but less than beyond a reasonable doubt), by presenting evidence that relates to these factors.

The court then makes a decision on whether third party visitation is in the child’s best interest.

The exception to the above is cases where the child is in the care of a public agency, such as child protective services, and both parental rights are being terminated. In these cases, the evidentiary standard is only preponderance of the evidence, and not clear and convincing evidence. See NRS 125C.050(7). The caveat to invoke this provision is you must file your petition for visitation BEFORE the termination of parental rights occurs. If you fail to do so, you now find yourself fighting under the other standard against the prospective or newly adoptive parents.

In sum, while grandparent or third party vistiation rights exist in Nevada, they require a very specific set of facts to exist before one can even file a petition, and even then, they are very difficult to obtain.

The good news is the Law Offices of Andriea A. Aden, Esq. has handled many grandparent and third party visitation rights cases. We can assess your case and advise you on whether you have a viable case or not.