Child custody rights determine who a child lives with when the child’s parents are legally separated, divorced, or deceased. This person is generally referred to as the custodial parent. The custodial parent is responsible for providing for the child’s basic needs, such as food, clothing, and shelter. Additionally, the person who is granted custody rights is responsible for making important life decisions on behalf of the child.
Some examples of such decisions include, but may not be limited to:
- Whether the child receives any religious indoctrination;
- Whom the child associates with;
- Where the child will attend school; and
- Decisions related to medical care.
Generally speaking, the child’s parents are the parties who will be considered when determining who should be granted custody rights. Grandparents getting custody of their grandchildren is somewhat of a rare occurrence, and usually only happens when one or both of the child’s parents have died or have been deemed unfit to care for the child. Whether a parent is unfit to care for their child is determined by the court alone.
Each state has its own laws which determine when to allow grandparents to have custody of their grandchild. Because it is presumed that parents have the right to determine who may have a relationship or contact with their child, courts have decided that grandparents do not have a constitutional right to their grandchild. Additionally, although they may have a strong relationship with the child, states are generally hesitant to separate the family unit by granting custody rights to grandparents. The exception would be cases involving death or unfit parenting as mentioned above.
If it is determined that it would be in the best interest of the child for their grandparent to be granted custody rights, the courts will consider a few different factors. They will assess the frequency of contact with the child, and determine whether there is a meaningful relationship between the child and the grandparent. Additionally, the court will assess whether it would actually be in the child’s best interest for that relationship to continue in a custodial manner.
When Will a Court Allow Grandparents to Have Custody?
As previously mentioned, a court might grant custody of a grandchild when the child’s parents are either unable or unwilling to raise their child. The grandparents must demonstrate that they are fit to raise the child; custody will not automatically be granted simply because they are the child’s grandparent.
The court will assess how long the parents have been unable to care for the child, and whether the grandparents requesting custody have been caring for the child during this time. The court may determine that a parent is unfit for several different reasons. Some examples include, but may not be limited to:
- The child is residing in an unsafe home;
- The parent somehow endangers the child’s well-being;
- The parent is involved in child abuse or neglect;
- The parent has abused drugs and/or alcohol; or
- The parent is mentally ill or physically disabled to the point that they are unable to adequately care for their child.
Some examples of the factors that a court considers when deciding whether to grant grandparent custody have already been mentioned. Other examples include:
- The grandparents’ financial ability to care for the child;
- The grandparents’ physical and mental health;
- Whether the child expresses a desire to live with their grandparents; and
- Whether a healthy emotional bond already exists between the child and their grandparents.
To further clarify what the court is looking for, they will consider whether the petitioning grandparents are mobile, and are able to be present and an active participant in the child’s life. The court will consider whether the grandparents are financially capable of caring for the child’s medical care and daily living expenses in addition to meeting their own financial needs. Finally, the court will assess how awarding custody rights to the grandparents will affect the child’s relationship with other family members, specifically any living parent.
What Types of Custody Arrangements are Available? How Much Does it Cost to Adopt My Grandchild?
Some examples of the types of custody arrangements that are available to eligible grandparents include:
- Adoption: As previously mentioned, many courts are especially apprehensive of permanently terminating the legal relationship between a child and their biological parents. If adoption is allowed by the state, the grandparents will become the child’s legal parents;
- Foster Care: When the child’s parents are unable or unwilling to care for their child, the state could assume legal responsibility for the child. They would then temporarily place the child in the foster care system, and the foster parents are responsible for the child’s daily needs. Generally speaking, most states will attempt to place the child in the home of a close relative, in an effort to maintain some sense of normalcy for the child. A grandparent may be considered for foster care;
- Legal Guardianship: Under a legal guardianship arrangement, the child’s parents continue to retain their parental rights. However, a court order or legal document will give the grandparents the authority to care for the child;
- Power of Attorney: When a power of attorney is properly executed, the grandparent is given the authority to make specific decisions about the child. It is important to note that they are limited to the circumstances described within the power of attorney, and the power of attorney can be terminated at any time by the child’s parent;
- Shared Custody: Shared custody between parents and grandparents works much in the same way as shared custody between two parents. Parenting responsibilities are divided equally between the child’s parents and grandparents; and/or
- Visitation Rights: Some states may allow for grandparent visitation rights, even if the state does not allow for other custody arrangements. A grandparent would begin this process by petitioning the court for court ordered visitation rights.
It is important to note that the above are variations of physical and legal custody; however, this does not mean that a grandparent will be awarded both legal and physical custody of their grandchild. What this means is that a grandparent can have physical custody of their custody, but power of attorney could be awarded to another relative or the child’s other parent.
To reiterate, the details of grandparents taking custody of a grandchild will vary from state to state. This includes how much it will cost to adopt the grandchild. On average, independent adoption costs between $8,000 and $40,000. Grandparents should expect to pay around $10,000 to $15,000.
Can I Stop the Adoption of My Grandchild?
Most grandparent adoptions are considered to be kinship adoptions, and as such are considered to be open adoptions. Under an open adoption, the grandparent may permit interaction between the child and the parents. However, the circumstances will determine the amount of allowable interaction.
There are some grandparent adoptions that are considered to be closed, meaning there is no interaction or contact between the child and their parents. Closed adoptions are generally allowed when it is necessary to protect the child from harm, such as if the child’s parent has an established history of abuse or mistreatment. In terms of practicality, the grandparent must be willing to cut any contact with the parent for the security and safety of their grandchild.
Whether a grandparent can stop the adoption of their grandchild will depend on their state. The court may be required to notify all grandparents of the grandchild’s pending adoption, and may allow the grandparents to legally object. It is important to remember that unless it is in the best interest of the child, the court will generally not deny the adoption.
It is equally important to remember that while adoption may terminate the child’s formal relationship with their biological parent, this does not mean that those grandparents are also erased. While the child may not be able to inherit property directly if the grandparent passes away, grandparents may still maintain a relationship with their grandchild with the permission of the adoptive parents.
Should I Hire a Lawyer If I Want to Adopt My Grandchild?
If you are concerned about your grandchild’s wellbeing and wish to adopt them, you should consult with an experienced local adoption lawyer. Because the process differs so greatly from state to state, you will want to work with an attorney who is local to you as they can best adhere to your state’s specific laws. Your attorney can also help you determine what your legal options are. Finally, an attorney can also represent you in court, as necessary.