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Grandparents and Divorce

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When your children come to you with their tales of marital woe beware. There will be a great temptation to finance your child's divorce, thinking that you are helping them get custody or more marital property but in most cases, hiring separate divorce lawyers is the death knell for any co-parenting relationship. Grandparents generally do not have rights to access their grandchildren in either divorce cases or when the parents are still together. Paying for your child's attorney will be seen by the other parent as taking sides and when one parent "wins" custody, guess whose parents will get the short end of the child visitation stick? Because American courts give great deference to parents, allowing them to chose whom shall have access to their children, our own Supreme Court has held that "fit parents" are presumed to act in their children's best interests. The state should not, therefore, "inject itself into the private realm of the family" to question the decisions of those parents. That means if the parents don't want the grandparents to see the grandchildren, the parents choices will usually trump what ever "rights" the grandparents might think they have.


In the major grandparents rights case that made it to the Supreme Court, the father of the children had died. The grandparents had always had open access to the children but when mom remarried and the stepfather adopted them, the grandparents were no longer welcome to have much visitation, so the grandparents sued mom. One would think that the family of the dead parent would be given special consideration, but that was not the case. If courts are willing to cut off the grandparents in a situation where a parent has died, you can imagine how far grandparents get if the parents are just divorced.

A better course of action for grandparents to take when their children are getting divorced, is to be a peace keeper. Refrain from encouraging your child to hire the biggest shark in town. Believe it or not, very little good will come from escalating the emotional tension, which is the inevitable result of hiring separate lawyers. Each state has laws regarding property division and support. There is almost nothing to fight about if both sides are honest. As for custody, the last thing you want is court involvement into this area of a divorce. A far better solution when parents can't agree on custody and are willing to leave it up to strangers to decide for them (lawyers/judges) is to use a stranger who is actually trained to get to the bottom of conflicts. Agree to leave all custody decisions to a family or child therapist, that way you can skip the lawyers, court and high legal bills in exchange for a fast and cost efficient solution.

Divorce mediation is the very best answer to the question of what to do when it is time to divorce. The couple can use one attorney instead of two. The attorney does not represent either side but is a great resource who can answer legal questions and help the couple negotiate an agreement and draft all the necessary paperwork. In states like California where the average cost of a contested divorce case is $20,000 per side, the cost of one mediator is a tiny fraction of the cost of a case that is fought in court. Any time you can cut lawyers out of a deal, you will save a lot of money. In divorce cases where children are involved, it is vital that they are not caught in the middle of their parents battle. Grandparents can give wise counsel to their own children by keeping the focus on what is in the best interest of the grand children. It is the rare case where kids are better off having limited contact with one of their parents. The best result in most cases is for the kids to be able to comfortably go back and forth between parents, but that is impossible after a bloody court battle. With many grandparents being the main source of funds for things like legal fees, they are in a powerful position to influence their own children's decision as to how to proceed with a divorce. When grandparents understand what is at stake, they should act according to their own best interest by making sure there is never a war between the parents. That way the children are protected from a nasty court fight and their own access to the children is better protected.