Grandpa fishing with young grandson in river


Roth Davies July 30, 2021

When a couple goes through a divorce and there are children involved, major issues to be resolved include custody and parenting time — or visitation rights — for the noncustodial parent. Sometimes left out in the legal shuffle are the rights of the grandparents to visit their grandchildren. Especially overlooked might be the parents of the noncustodial spouse.

This brings up the question: Do grandparents have visitation rights, and if they are denied those rights, do they have legal recourse to restore them? Kansas law clearly addresses this issue and offers a remedy if certain conditions are met. 

If you’re a grandparent facing this situation in or around Overland Park, Kansas, or anywhere throughout Johnson County, contact Roth Davies LLC.  The firm’s family law attorneys will listen to your situation and advise you of your options to restore your right to visit your grandchild or grandchildren.


A 2014 Kansas statute declares: “The district court may grant the grandparents of an unmarried minor child reasonable visitation rights to the child during the child's minority upon a finding that the visitation rights would be in the child's best interests and when a substantial relationship between the child and the grandparent has been established.”

This statute pertains even if the parents never married or even if they still live together. As the grandparent, however, you face a burden of proof to show that you have a “substantial relationship” and that it is in the “best interests” of the child for you to have visitation rights. The courts will generally weigh the following factors:

  • How often you visited the child(ren) before the parents divorced

  • What type of activities you participated in together

  • Whether you personally helped with child care or spent nights with the child(ren)

  • Whether you’ve maintained — or tried to maintain — contact after the divorce by phone calls, emails, text messages, or other means

The custodial parent will have a great influence on whether your visitation rights are in the best interests of the child(ren). Courts usually defer to the parent's wishes when it comes to visitation rights by grandparents, so they may adopt a visitation schedule proposed by the parent(s). If the custodial parent or both parents object to your visitation rights, you will have to show that they are being unreasonable.


In more extreme circumstances, grandparents may deem it essential to take custody of their grandchildren — or even to adopt them. Kansas law does provide for both of these options, but the legal path can be quite tricky. You will definitely need the aid of experienced child custody and visitation attorneys.


The first path to custody comes if the parents decide they can no longer provide a fit home for the children. They can then voluntarily choose to let the grandparents take over. This can be done through a power of attorney (POA).

A temporary situation for grandparent custody through a POA might arise if the custodial parent faces an overseas military assignment and the other parent is no longer involved with the children or doesn’t want the responsibility.


A grandparent can also file a petition for guardianship if the parents are unable or unfit to care for their children due to mental, physical, or financial reasons. The grandparent then has a burden of proof on their shoulders to convince a judge that it is in the best interests of the child(ren) for the guardianship to be granted and that the grandparent is the best person for this responsibility.

The guardianship can be either temporary or permanent (until the children reach 18 years of age). If the parent or parents resolve the situation that led to the guardianship, the court will likely terminate the grandparents’ guardianship.


The possibility for assuming custody also exists in cases where the parent or parents have been reported to local law enforcement or to the Kansas Department for Children and Families (DCF) for abuse, neglect, or dangerous conduct under the Child in Need of Care (CINC) Code. If the ensuing investigation results in the removal of the child or children from their parents, a separate statute declares that a grandparent seeking custody should be given “substantial consideration.”


If the parents relinquish all rights to care for their children, or if a court terminates their rights, the grandparent or grandparents can also petition for the right to adopt the children. With adoption, the grandchildren obtain rights to inherit the grandparents’ estate and receive their Social Security survivors’ benefits should they die. Adoption is permanent, and the parents lose all of their rights and will no longer be financially responsible for the child(ren).


All of the options above are going to involve courtroom proceedings and require documentation and evidence to show that you, the grandparent, deserve visitation, guardianship, or custody rights to your grandchildren. Be prepared for some potentially challenging and trying times. You will need experienced attorneys to guide you through the entire process.

The attorneys at Roth Davies LLC will fight for your rights and stand by you every step of the way. If you face a visitation or guardianship issue in or around Overland Park, Kansas, or anywhere in Johnson County, contact the firm immediately for a consultation. They will listen to your situation and provide you with clear options to help you achieve your goals.