Each state may vary when determining when to allow grandparents to have custody of a grandchild. There is a presumption that parents have the right to determine who may have a relationship or contact with their child. In this regard, courts have concluded that grandparents do not have a constitutional right to their grandchild.
Moreover, despite having a relationship with the child, states are reluctant to break the family unit and give custody to grandparents unless the circumstances really warrant it.
A state may allow a custody arrangement when the parent is unable to care for a child, but even then the court will only do so when in the best interest of the child. The court will look at the frequency of contact with the child and determine whether there is a meaningful relationship with the child. They will also determine whether it would be in the child’s best interest to continue that relationship.
If you are unable to enter into an amicable arrangement with the parents, a court still may not grant your custody request unless you are able to show the parents are unable to take care of the child.
Typically, the court will look at how long the parents have been unable to care for the child and at whether you have been caring for the child during this time. The court may order a custody arrangement in a variety of circumstances, including when the following is evident:
- Death or incarceration;
- Serious physical or mental incapacity; and/or
- Substance abuse.
Because the court generally only allows custody arrangements when the parent is unable to care for the child, it is important that you also are able to show that you can care for the child.
Among other things, the court will consider your physical and financial capabilities. Is the grandparent mobile and able to be present and participate in the child’s life? Do they have the financial means to afford medical care and daily living expenses, for themselves and the child? While there are subsidies in the event of guardianship or adoption, they tend to be a one-time occurrence and adopting grandparents need to determine if they can factor in the rising cost of raising a child. Finally, the court will also consider how the adoption will affect the child’s relationship with other family members.
If you are a grandparent, you may petition the court for legal and physical custody. In your state, legal and physical custody may be broken down in the following ways:
- Adoption: States are particularly hesitant to permanently terminate the relationship between a child and their biological parents.
- If adoption is allowed, however, then the grandparents will become the child’s legal parents.
- Foster Care: When the parents become unable to care for their child, the state may assume legal responsibility for the child and place them temporarily in the foster care system. The foster parents care for the child’s daily needs.
- States will try to place the child in the home of a close relative to maintain a sense of normalcy for the child.
- Legal Guardianship: The parents continue to retain their rights, but a court order or legal document will give you the authority to care for the child.
- Power of Attorney: Pursuant to a properly executed power of attorney, you are given the authority to make specific decisions about the child.
- You are limited to the circumstances described by the power of attorney and it can be terminated at any time by the parent.
- Shared Custody: Shared custody works in the same way as if the circumstances involved two parents. Parenting responsibilities are divided between the parents and grandparents.
- Visitation Rights: Your states may allow visitation rights even if it does not allow other custody arrangements. You may begin this process by petitioning the court.
Check with an attorney in your state to find out whether any or all of these options are available to you given your situation. Keep in mind that the above are variations of physical and legal custody, but it does not mean that a grandparent will be awarded both legal and physical custody. This means that a grandparent can have physical custody but power of attorney is awarded to another relative.
Once you can establish facts to show the parents are unable to care for the child, you may petition the court to allow you to adopt the child. Most grandparent adoptions are kinship adoptions and are considered open.
In an open adoption, you can permit interaction between the child and the parents. The circumstances will dictate the level of interaction.
In spite of these points, there are some grandparent adoptions that are closed, which means there is no interaction or contact between the child and the parents. Often, closed adoptions are allowed when necessary to protect the child from harm.
If the child’s parent has a history of abuse or mistreatment, then it is likely that the adoption will be a closed adoption. In a practical sense, this must mean that the grandparent needs to be willing to cut any contact with the parent for the security and safety of their grandchild.
The answer to this questions will depend on your state. The court may be required to notify you of the grandchild’s pending adoption and may allow you to object to the adoption. However, unless it is in the best interest of the child, the court will typically not deny the adoption.
Remember, while adoption may terminate the child’s formal relationship with their biological parent, it does not mean that the grandparent is also erased. While they may not be able to inherit property directly (without a will) if the grandparent passes away, grandparents can still maintain a relationship with their grandchild at the permission of the adoptive parents.
Grandparents’ custody and visitation rights vary from state, so it is important that you fully understand what options are available to you in your state. An adoption attorney can help you identify these options and advise you which makes sense given your factual circumstances.