For grandparents and other third parties who want to seek visitation rights, the most common time to do so is during the son or daughter’s pending divorce or custody proceeding. Grandparents can seek visitation whether the child's parents are unmarried, if the child's parents file for divorce, dissolution or legal separation, or if one of the child's parents has died.
The foremost typical scenarios for grandparent visitation or custody rights include the following:
1. If your son or daughter dies, and the other living parent denies contact (R.C. 3109.11).
2. If your son or daughter is in the midst of a divorce or other legal proceeding during which the Court determines parental rights or child support (R.C. 3109.051(B)).
3. If the Court finds, with respect to any child under eighteen (18) years of age, that custody to neither parent is in the best interest of the child, it may award custody to the child's relative, or refer the matter to the Juvenile Court (R.C. 3109.04(D)(2)); and
4. In a custody dispute between a parent and nonparent, if the Court finds the parent to be incapable of properly caring for the child (very high threshold to overcome) (R.C. 2151.23(A)(2)).
As stated above, the third party requesting visitation does not even have to be a "grandparent." In fact, the law specifies that a Court has discretion to grant reasonable companionship or visitation rights to "any other person having an interest in the welfare of the child" (R.C. 3109.05(B)).
As to whether or not to confer visitation rights on a grandparent or "other person," the Court considers what is in "the best interest of the child." What constitutes "best interests" varies in every circumstance, but the focus is going to be on the relationship between the grandparent and the child, and the impact that has on the grandchild’s welfare.
Of course, the Court must also take into account the viewpoint of the grandchild’s parents, by giving “special weight” to their wishes. Likewise, the grandchild's wishes may also be factored in -- depending on whether the child has sufficient reasoning ability by virtue of his/her age and intellect. Ultimately the Court makes the final determination after assessing all of the pertinent factors, viewpoints, and details.