Are Grandparents Entitled to Same Visitation Their Deceased Child Would Have Had

My question involves a child custody case from the State of: Louisiana

Good Morning Everyone,

I posted a while back about my son's paternal grandmother threatening to take me to court for more visitation with my son. She currently sees him two weekend days per month. I spoke to a someone this weekend who has worked in family law in Louisiana for many years about the situation. She told me that if his grandmother were to go to court for more visitation that she would be entitled to what my husband would have had if he were alive. How would that even work? We were married when he passed away.

Would they potentially give her every other weekend or some type of divorced custody visitation schedule? I want to believe what this person has told me since they have been in family law for so long, but I don't want to believe the courts would do that, especially since we were still married. I can see this maybe if we were divorced and had a custody agreement in place.

Just an update - since Christmas the relationship between the grandmother and I has still been a little strained, but getting better. She has not mentioned court again and we have been sticking to our normal schedule so far.

In general terms, Louisiana law provides,

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Quoting Louisiana Civil Code art. 136. Award of visitation right

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A. A parent not granted custody or joint custody of a child is entitled to reasonable visitation rights unless the court finds, after a hearing, that visitation would not be in the best interest of the child.

B. A grandparent may be granted reasonable visitation rights if the court finds that it is in the best interest of the child. Before making this determination, the court shall hold a contradictory hearing as provided for in R.S. 9:345 in order to determine whether the court should appoint an attorney to represent the child.

C. Under extraordinary circumstances, any other relative, by blood or affinity, or a former stepparent or stepgrandparent may be granted reasonable visitation rights if the court finds that it is in the best interest of the child. Extraordinary circumstances shall include a determination by a court that a parent is abusing a controlled dangerous substance.

D. In determining the best interest of the child under Paragraphs B and C of this Article, the court shall consider:

(1) The length and quality of the prior relationship between the child and the relative.

(2) Whether the child is in need of guidance, enlightenment, or tutelage which can best be provided by the relative.

(3) The preference of the child if he is determined to be of sufficient maturity to express a preference.

(4) The willingness of the relative to encourage a close relationship between the child and his parent or parents.

(5) The mental and physical health of the child and the relative.

E. In the event of a conflict between this Article and R.S. 9:344, the provisions of the statute shall supersede those of this Article.

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To the extent that the two statutes may appear to conflict, there's authority for applying the second, more specific statute in cases involving a deceased parent.

Louisiana also offers some additional relief where a parent is deceased,

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Quoting Louisiana R.S. Sec. 9-344. Visitation rights of grandparents and siblings

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A. If one of the parties to a marriage dies, is interdicted, or incarcerated, and there is a minor child or children of such marriage, the parents of the deceased, interdicted, or incarcerated party without custody of such minor child or children may have reasonable visitation rights to the child or children of the marriage during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.

B. When the parents of a minor child or children live in concubinage and one of the parents dies, or is incarcerated, the parents of the deceased or incarcerated party may have reasonable visitation rights to the child or children during their minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.

C. If one of the parties to a marriage dies or is incarcerated, the siblings of a minor child or children of the marriage may have reasonable visitation rights to such child or children during their minority if the court in its discretion finds that such visitation rights would be in the best interest of the child or children.

D. If the parents of a minor child of the marriage have lived apart for a period of six months, in extraordinary circumstances, the grandparents or siblings of the child may have reasonable visitation rights to the child during his minority, if the court in its discretion finds that such visitation rights would be in the best interest of the child. In determining the best interest of the child the court shall consider the same factors contained in Civil Code Article 136(D). Extraordinary circumstances shall include a determination by a court that a parent is abusing a controlled dangerous substance.

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A court has explained,

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Quoting Garner v. Thomas, 13 So.3d 784 (La.App. 5 Cir. 2009)

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A proper interpretation of LSA-R.S. 9:344 requires the trial court to balance the statute against a fit parent's constitutionally protected fundamental right of privacy in child rearing and to remember that any rights of nonparents are ancillary to those of a fit parent. Furthermore, the nonparent has the burden of proving visitation or a modification of visitation would be reasonable and in the best interest of the child, as is required by the statute. Barry v. McDaniel, 05-2455 at p. 10, 934 So.2d at 76, citing Babin v. Babin, 02-0396 (La.App. 1 Cir. 7/30/03), 854 So.2d 403, 410-411, writ denied, 03-2460 (La.9/24/03), 854 So.2d 338, cert. denied sub nom. Babin v. Darce, 540 U.S. 1182, 124 S.Ct. 1421, 158 L.Ed.2d 86 (2004)....

We recognize also the principles that the nonparent seeking a modification must prove that the proposed change in visitation would be reasonable and in the best interest of the child, and that visitation that unduly burdens parental rights would be unconstitutional, regardless of the provisions of statutory law. See, Wood v. Wood, 02-0860, pp. 8-9 (La.App. 1 Cir. 9/27/02), 835 So.2d 568, 573. We recognize that the state's interest in extended family relationships between children and non-parents must be compelling, narrowly drawn and not unduly intrusive of parental rights, so that the trial court must consider the presumption that [the child's surviving parent] acted in the best interest of his children, and some material weight must be given to that determination. See, Id., 02-0860, pp. 10-11, 835 So.2d at 575.....

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So no, your friend is incorrect that the grandparent simply steps into the shoes of the deceased parent. However, Louisiana is more friendly than many other states to the grant of reasonable grandparent visitation when one birth parent is deceased.

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Quoting Mr. Knowitall

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In general terms, Louisiana law provides,

To the extent that the two statutes may appear to conflict, there's authority for applying the second, more specific statute in cases involving a deceased parent.

Louisiana also offers some additional relief where a parent is deceased,

A court has explained,

So no, your friend is incorrect that the grandparent simply steps into the shoes of the deceased parent. However, Louisiana is more friendly than many other states to the grant of reasonable grandparent visitation when one birth parent is deceased.

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Thank you for the information, I appreciate your time :)

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Quoting Mr. Knowitall

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In general terms, Louisiana law provides,

To the extent that the two statutes may appear to conflict, there's authority for applying the second, more specific statute in cases involving a deceased parent.

Louisiana also offers some additional relief where a parent is deceased,

A court has explained,

So no, your friend is incorrect that the grandparent simply steps into the shoes of the deceased parent. However, Louisiana is more friendly than many other states to the grant of reasonable grandparent visitation when one birth parent is deceased.

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I am going to disagree with that last sentence. While the statute might make it appear so, Louisiana in practice tends to favor the decisions of fit parents since Troxel. Prior to Troxel I would have agreed with you, and actually would have agreed with the attorney who gave the OP the incorrect info.

You need to again review Louisiana case law, and the distinction it draws between cases under Louisiana Civil Code art. 136 as compared to Louisiana R.S. Sec. 9-344.

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Quoting Mr. Knowitall

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You need to again review Louisiana case law, and the distinction it draws between cases under Louisiana Civil Code art. 136 as compared to Louisiana R.S. Sec. 9-344.

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I did not base my opinion on case law, I based on it what is actually happening at the trial court level. The issue of gpv is one where I am actively involved with families dealing with that issue. I haven't seen a fit parent lose a case in Louisiana in a long time. The only two states that are actually "grandparent friendly" are NY and PA, and even there, its nothing like it used to be.

Case law is always helpful, but its not always reflective of what is actually happening in the trenches when it comes to family law, because so few families actually have the means to take a case to appeal. The issue was "notorious" enough in WA, IL, MI, FL (actually it was dead in FL even prior to Troxel), and other states that cases made it to appeal quickly after Troxel, and statutes got changed, and then challenged again, and struck down again, but in most of the rest of the country its been less "notorious" and more of a quiet change based on the changes of the mindset of judges.

We often tell people who come to these forums that its wise to consult local counsel who are more familiar with the climate of the local courts.

And apparently OP spoke with someone who actually works in the system in LA and is familiar with how judges in the area rule in these matters, and who gave her information that backs up the statutes that Mr. KIA posted.

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Quoting EA1070a

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And apparently OP spoke with someone who actually works in the system in LA and is familiar with how judges in the area rule in these matters, and who gave her information that backs up the statutes that Mr. KIA posted.

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No, Mr KIA also agreed that the statutes did NOT back up what the OP was told. The only disagreement that Mr. KIA and I had was the statement he made that Louisiana was more grandparent friendly than most states.

I suspect that the attorney that the OP spoke to has not actually dealt with a gpv case in the last 15 years or so. The language that attorney used as a bit archaic.

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Quoting llworking

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No, Mr KIA also agreed that the statutes did NOT back up what the OP was told. The only disagreement that Mr. KIA and I had was the statement he made that Louisiana was more grandparent friendly than most states.

I suspect that the attorney that the OP spoke to has not actually dealt with a gpv case in the last 15 years or so. The language that attorney used as a bit archaic.

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Thank you everyone. LLWorking, you are correct. The person I spoke with worked mostly with divorce cases - and this was in a small town so it is extremely likely a GPV case had not come through their office in quite some time.

- - - Updated - - -

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Quoting llworking

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I did not base my opinion on case law, I based on it what is actually happening at the trial court level. The issue of gpv is one where I am actively involved with families dealing with that issue. I haven't seen a fit parent lose a case in Louisiana in a long time. The only two states that are actually "grandparent friendly" are NY and PA, and even there, its nothing like it used to be.

Case law is always helpful, but its not always reflective of what is actually happening in the trenches when it comes to family law, because so few families actually have the means to take a case to appeal. The issue was "notorious" enough in WA, IL, MI, FL (actually it was dead in FL even prior to Troxel), and other states that cases made it to appeal quickly after Troxel, and statutes got changed, and then challenged again, and struck down again, but in most of the rest of the country its been less "notorious" and more of a quiet change based on the changes of the mindset of judges.

We often tell people who come to these forums that its wise to consult local counsel who are more familiar with the climate of the local courts.

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So in this case, would my son's grandmother not likely receive more than the reasonable visitation she already gets since I am very fit parent?

These situations always suck. Grandparents lost their child and all they have left of him is his child. It's heartbreaking.

Unless the grandparents are unfit or dangerous to the child, why not grant them more access?

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Quoting llworking

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I did not base my opinion on case law, I based on it what is actually happening at the trial court level.

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No matter how involved with the issue you may be, you don't have the exposure or experience to make such a generalization.

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Quoting EA1070a

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These situations always suck. Grandparents lost their child and all they have left of him is his child. It's heartbreaking.

Unless the grandparents are unfit or dangerous to the child, why not grant them more access?

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Thank you for your response. I agree, these situations do suck. I know she lost her baby, I do not even want to think of a world without mine. It is a very hard situation. I wish my husband were still alive. I would still have my partner, my son would have his father and we would not be in this situation now.

Mine and my son's time is already stretched enough. He goes to school and I work during the week, so evenings are usually a bit hectic so the weekends are nice for spending time together that isn't stacked between dinners, bath time and bed time. In addition to my time with my son he does have 3 other grandparents that want to see him too. Both sets of grandparents are divorced - so visits are separated. His grandmother that is giving me trouble now sees him more than the other 3, and she does not care and refuses to hear it. She does not care when the others see him only that she wants him MORE. It seems it is a competition to her.

Your son sounds like the luckiest child, most people on this forum are posting about fighting family that don't want the responsibility or the time with the child, whereas your little guy has all these people fighting for more time to be a part of his life!

I am not sure if you mentioned how long ago your husband passed, but perhaps the difficulty grandma is giving you is a byproduct of her grief that will slowly dissipate with time?

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Quoting wess1881

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Your son sounds like the luckiest child, most people on this forum are posting about fighting family that don't want the responsibility or the time with the child, whereas your little guy has all these people fighting for more time to be a part of his life!

I am not sure if you mentioned how long ago your husband passed, but perhaps the difficulty grandma is giving you is a byproduct of her grief that will slowly dissipate with time?

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He is a lucky little guy! I am too - my child has so many people that love him and want to be a part of his life instead of people who mistreat him, even if it gets stressful at times. It has been almost four years since my husband passed away. There were issues with her before my husband passed away, and we had to set some boundaries...which was difficult. His passing did up the intensity of her difficulty - very understandably. It has faded some as time has gone by, but she has and always will just be one of those people that you cannot please no matter what you do.

I do not want to take visits away from her at all. My goal here has been to find out what could possibly happen if she did follow through on her threat of court. I want to make sure if I do stick to my guns how that could affect me legally.

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Quoting Mr. Knowitall

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No matter how involved with the issue you may be, you don't have the exposure or experience to make such a generalization.

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worked with thousands of families in all 50 states and was part of an organization that submitted an Amicus Brief to the USSC in Troxel...