There are some laws on the books that although neutral on their face, can have different results when applied to different situations. Personally, I question whether the legislature truly intended the different results.

Grandparent visitation provides one such example. Unfortunately, there are many families where, for one reason or another, the mother (or father or both) just does not get along with their own parents. The reason does not really matter. They just don’t get along. One “weapon” that the mom or dad has against their own parents in these instances is to deny them all access to their grandchildren. It happens all too often.

What can grandparents do about this? It depends. If the family (Mom, Dad, and the kids) is an “in-tact” family all living under one roof with no prior divorce or child custody proceedings, the grandparents are out of luck. That’s because the law requires that there be an underlying “proceeding” in order for the grandparents to ask the Court for visitation rights. If there is no proceeding, they can’t even get their foot in the door. (The law is different, though, if the grandparents ever spent time living with the children. This blog assumes grandparents and grandchildren have never resided together).

A few years ago the Minnesota Supreme Court was asked to decide whether the execution of a Recognition of Parentage (ROP) form was a “proceeding” under the law. (A ROP is a document typically executed by unmarried parents at the birth of a child for the purpose of establishing paternity). If it was, then the grandparents could ask for visitation rights. If not, then the Court did not even have jurisdiction to grant visitation rights. The Court ultimately determined that a ROP is a “proceeding” for parentage under the law, and the Court therefore had jurisdiction to grant grandparent visitation rights.

So, let’s imagine two different scenarios. Both cases involve a married couple with one child. In scenario one, the child was born during the marriage, so a ROP was never signed. There are no underlying proceedings. In scenario two, though, the parties had their child before the marriage, so they signed a ROP after the child was born. If Mom in scenario one decides that Grandma never gets to see the kids, Grandma has no recourse in court. In scenario two, however, because of the ROP, Grandma has the ability to go to court and ask for visitation rights.

Again, I question whether the legislature intended these different results. It’s hard to imagine that it did. Whether or not a piece of paper was signed at a child’s birth acknowledging paternity shouldn’t be what determines whether grandparents can subsequently petition for visitation rights. Or at least you wouldn’t think.

If there was an underlying proceeding, and the Court therefore has jurisdiction to grant grandparent visitation rights, how much visitation to grant is an entirely different issue (and a subject for a different blog).

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