Divorce divides one family into two, and kids can lose a lot in its wake, including time with extended family. While the parent who doesn't get primary custody is usually given visitation time with minor children, extended family members, like grandparents and aunts and uncles, usually aren't. But the laws are changing, and whether aunts and uncles can be awarded visitation rights depends on the state the kids are in as well as the exact family circumstances.
Visitation rights is a legal term used when a divorcing parent who doesn't get primary custody of the children is given the right to visit them. The visitation default used to be every other weekend. But in modern times in many states, visitation and custody have been merged into the broader concept of a "parenting plan." Under a parenting plan, weekdays, weekends and holidays are divided between the parents according to their schedules.
But in some states, one parent is still awarded primary custody and the other visitation time. This is an enforceable right. If the custodial parent won't allow the children to visit according to the court order, the other parent can ask for court assistance to enforce it.
Do Aunts Have Visitation Rights?
The family support system of a child is broader than just the two parents, in many cases. Kids also bond with extended family like grandparents, aunts and uncles. Do extended family members get visitation rights, too? For example, do aunts have visitation rights? The answer depends on what state you live in.
In some states, extended family members can apply for visitation rights, but they usually cannot do so if the family is intact. That is, if the parents are not divorced, but simply decide they do not want grandparents or a particular aunt of the children to visit, courts usually accept that as part of the parental rights to decide with whom a child associates. It is very difficult in most states for a grandparent or aunt/uncle to argue for visitation against both parents' desires.
Different States, Different Rules
Some states give extended family members visitation rights in some cases, but these differ widely between jurisdictions. For example, in North Carolina, grandparents have the right to seek visitation in certain circumstances, but aunts and uncles do not. On the other hand, third parties other than grandparents do have the right in this state to ask for custody of the children under certain circumstances. These include a situation in which a parent is dead or has engaged in misconduct, or when the third party (such as an aunt) has acted in a parental capacity for a certain length of time.
In contrast, Virginia law specifically allows third parties to petition for visitation. The statute states that the court may award custody or visitation of minor children to any third person with a legitimate interest. The term "person with a legitimate interest" is defined to include grandparents, blood relatives and family members.
Likewise, in California, the court can grant grandparents or aunts and uncles visitation rights if there is a pending custody case. The aunt/uncle/grandparent must petition the court to be included in the case, then would have to show that it is in the child’s best interest to have visitation with the aunt and uncle.