Grandparents' Child Custody Rights

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Most Common Family Law Issues:

Do I Have Custody Rights to My Grandchildren?

There are two primary situations when the custodial rights of grandparents come into play:

  1. When the grandparents wants custodial rights over the child's real or adoptive parents
  2. When the grandparent wants custody over persons who are not the child's real or adoptive parents, but who presently have custody.

Grandparents' rights vary greatly from state to state. In nearly all cases, however, the grandparents will need to petition the court, showing that the child’s parent is absent or incapable of responsibly raising a child.

What Are Some Custody Options for Grandparents?

As mentioned above, the grandparent’s options will typically be determined by the child’s situation. As a general rule, in an effort to endorse families, states are unwilling to separate children from their parents. Notwithstanding, below are some common situations where the state may be willing to workout an alternative form of custody.

If both parents are absent or unfit: In situations where both parents are unfit or otherwise missing, a court may allow the grandparents to ask for full custody or adoption. Another option is legal guardianship. The logic behind allowing the grandparent to step in, instead of the state, is because they are not only blood relatives, who have already demonstrated their parenting ability. It is worth noting that adoption and legal guardianship can be lengthy processes in some states.

If one parent is fit, and the other is absent or is unfit: Situations like this typically arise where incarceration, addiction, or mental health issues are present. When this situation occurs, courts may utilize a "best interests" doctrine, where remaining with a nuclear family may not be what is healthiest for the child.

Factors include:

In situations where the best interest of the child is to stay with the grandparent, a court may order a variety of types of custody, such as:

What type of custody the court orders will depend on several factors, such as whether the fit parent is employed, has any legal or mental health issues, and how permanent the unfit parent’s situation ultimately is.

For example, a court may be less likely to award full custody or guardianship to a parent if one parent is fit and the other is in a treatment program for drug addiction or is incarcerated for a short period of time. However, the longer the incarceration or severe the addiction, the more willing a court will be to award a more permanent custody situation.

If both parents are fit, but have issues: This type of situation is perhaps the most difficult for grandparents to establish custody rights. Again, courts may utilize a "best interests" doctrine like the one mentioned above. However, many states have an overriding interest in keeping families together, and the grandparent may have an uphill battle. Similar to situations outlined above, incarceration, abuse, and addiction may leave a court inclined to award some form of initial temporary custody.

Should I Seek Legal Advice?

Custody and family law issues are incredibly difficult to handle without an attorney. Although many states have established self-help centers and legal forms for these situations, they offer little guidance and are usually incredibly dense. If you are thinking about gaining legal custody over your grandchild, seeking legal advice would be an excellent first step in the right direction. An experienced family law attorney will be able to explain your rights under the laws of your state, and what type of custody you can expect.

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Last Modified: 07-18-2014 11:04 AM PDT

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