Grandparent Visitation in Ohio
Erik L. Smith
Grandparent visitation in Ohio where the child was born in wedlock and one parent died either during the marriage or after the divorce.
In Ohio, the right of grandparents to associate with their grandchildren is not constitutional, but purely statutory.1 Where the child was born in wedlock, the General Assembly authorizes grandparent visitation only where the parents' marriage is no longer intact through divorce, annulment, dissolution, or a child support proceeding.2 That discrimination is facially constitutional.3 In all cases involving fit parents, courts give the parents' wishes about visitation special weight.4
The statutes do not address specifically the rights of grandparents where the grandchild was born in wedlock and the natural parent died during the marriage.5 But where the parent died after a divorce, if a motion for grandparent visitation was not filed in the divorce proceeding, the court can consider a motion for grandparent visitation filed later.6 If the visitation motion was filed during the divorce, then the court may need to find a change in circumstances.7
After giving the parent's wishes appropriate weight, a child's best interest applies under R.C. 3109.051(D).8 9
1 In re Martin (1994), 68 Ohio St.3d 250, 252 and 254; In re Schmidt (1986), 25 Ohio St.3d 331.
2 R.C. 3109.051(B)(1).
3 Harrold v. Collier, 107 Ohio St.3d 44, 2005-Ohio 5334, par. 44 following Troxel v. Granville (2000), 530 U.S. 57.
5 See R.C. 3109.11-12.
6 R.C. 3109.051(B)(2).
7 R.C. 3109.051(B)(2).
8 In re Martin; In re Kaiser, 2004-Ohio-7208 (7th Dist.) at pars. 12-14.
9 3109.051(B) states: "(1) In a divorce...the court may grant reasonable...visitation rights to any grandparent if all of the following apply: (a) The grandparent...files a motion with the court seeking companionship or visitation rights. (b) The court determines that the grandparent, relative, or other person has an interest in the welfare of the child. (c) The court determines that the granting of the companionship or visitation rights is in the best interest of the child. (2) A motion may be filed under division (B)(1) of this section during the pendency of the divorce..or, if a motion was not filed at that time or was filed at that time and the circumstances in the case have changed, at any time after a decree or final order is issued in the case."
Erik L. Smith is a certified paralegal in Columbus, Ohio and an independent legal researcher for family law and personal injury attorneys. He has appeared on NPR, CNN, and PBS regarding adoption law and has published several of his articles on the internet and in hard copy publications such as Ohio Lawyer, Air Force Law Review, Probate Law Journal of Ohio, Adoption Today, and Midwifery Today.