When a child loses a parent, relationships with that parent’s family can become more important—not less.
Grandparents may carry the child’s memories, traditions, family history, and connection to the parent who died. Yet Vermont law does not automatically preserve those relationships.
Did You Know?
If your adult child dies, you could also lose your grandchildren.
The surviving parent or custodian may end contact, even when the grandparents have been a loving and substantial part of the child’s life.
The grandparents must then go to court and attempt to prove why the relationship should continue.
What Vermont Law Provides
When a child’s parent has died, is incapable of making a decision, or has abandoned the child, a grandparent may bring a court action seeking visitation or access.
The statute says that a court shall grant reasonable visitation or access when it determines that doing so is in the child’s best interests.
The court is directed to consider factors including:
- The emotional ties between the child and grandparent
- The nature of their relationship
- The desirability of maintaining it
- The child’s preference, when appropriate
- The grandparent’s willingness to support the child’s other relationships
- Any other relevant circumstances
On its face, the statute appears to create a straightforward best-interests test.
Why Grandparents Still Face a High Legal Bar
The written statute does not show the full legal standard.
Parents have a fundamental constitutional interest in making decisions concerning the care and upbringing of their children. To protect that interest, the Vermont Supreme Court has held that a fit parent’s decision about grandparent contact is presumed valid.
A court cannot override that decision merely because:
- The grandparent has a close relationship with the child
- Continued contact would benefit the child
- The court believes the parent has no good reason for ending contact
- The court would have made a different decision
Instead, the grandparent must present evidence of compelling circumstances justifying judicial interference with the parent’s decision.
The Vermont Supreme Court has said that this may require proof of parental unfitness or that denying contact will cause significant harm to the child’s health, safety, or welfare.
That is an exceptionally high burden.
A grandparent may therefore have the legal right to file a case after a parent dies, but still be unable to preserve a safe, loving, and established relationship unless its loss can be proved likely to cause significant harm.
What the Child Can Lose
This is not only a question of whether grandparents should have visitation rights.
The more important question is what the child loses when the relationship is severed.
After losing a parent, the child may also lose:
- Grandparents who provided regular care, comfort, and guidance
- Relationships with aunts, uncles, cousins, and extended family
- Family traditions and shared experiences
- Stories and memories of the parent who died
- A connection to the deceased parent’s identity and history
- A continuing sense of belonging to that side of the family
The loss may be especially severe when grandparents served as regular caregivers or when they are the child’s principal connection to the deceased parent’s family.
A child should not unnecessarily lose an entire side of the family after already losing a parent.
A Vermont Family’s Experience
Rosemary lost her child. Then she lost contact with her grandchildren.
The death of Rosemary’s child was followed by another devastating loss: the end of her relationship with her grandchildren.
Her experience shows how the death of a parent can lead to the sudden disappearance of additional family relationships for the children who remain.
Vermont law gave Rosemary the ability to ask a court for access. It did not preserve the relationship or prevent contact from being cut off in the first place.
Why Current Law Falls Short
Vermont’s grandparent-visitation statute was enacted in 1983. Its written language has not kept pace with later constitutional decisions or with a fuller understanding of children’s need for continuity after loss.
The statute does not expressly direct courts to consider:
- Whether the grandparent had a substantial and established caregiving relationship with the child
- Whether contact ended abruptly after the parent’s death
- Whether denying contact would sever the child from the deceased parent’s family
- The child’s need for family identity, continuity, and belonging
- The reasons offered for denying, restricting, or ending contact
- Evidence that loss of the relationship would harm the child
- Whether a limited and carefully tailored order could preserve the relationship while respecting parental authority
The statute still lists broad factors such as the parties’ “moral fitness” and physical and mental health, but it does not expressly state the constitutional presumption or compelling-circumstances standard imposed by the Vermont Supreme Court.
The result is a law that is incomplete on its face, difficult for families to understand, and poorly adapted to the particular needs of children grieving a parent.
Respecting Parents While Protecting Children
Reform must respect the constitutional authority of fit parents.
Grandparents should not automatically receive court-ordered access, and judges should not replace reasonable parental decisions with their own preferences. Safety concerns, family conflict, boundary violations, and the effect of litigation on the child must all be considered.
But respecting parental authority does not require treating the child’s established family relationships as legally insignificant.
Courts should be able to distinguish between:
- A grandparent seeking to override reasonable parental boundaries; and
- A child facing the complete loss of a substantial, safe, and beneficial relationship after a parent’s death.
Those are not the same situation.
What Balanced Reform Should Accomplish
Balanced legislation should:
- Continue to give substantial weight to the decisions of a fit parent
- Protect children and parents from unsafe or harmful contact
- Focus on the child’s actual relationship with the grandparent
- Consider the child’s connection to the deceased parent and that parent’s family
- Examine the reasons contact was denied, restricted, or ended
- Consider evidence concerning the effect on the child of losing the relationship
- Require decisions to be supported by evidence and specific findings
- Consider whether a narrower or less restrictive order could preserve the relationship
- Avoid orders that unnecessarily interfere with the surviving parent’s authority
Preserving Connection After Loss
The death of a parent changes a child’s family forever.
The law cannot undo that loss. But it should not make the loss greater by allowing safe, substantial, and beneficial family relationships to disappear without meaningful consideration of what they provide to the child.
Vermont can respect parental rights while also recognizing children’s need for continuity, identity, and belonging.