An individual with child custody rights resides with the child. This person is also responsible for the child’s basic needs (i.e., the need for food, clothing and shelter), and makes important life decisions on behalf of the child. These decisions include, among others, decisions about the child’s medical treatment, education, and religious instruction.
Individuals with child custody rights are typically the child’s parents. In some instances, such as when a child’s parents have died or divorced, the child’s grandparents may have either child custody or visitation rights. Visitation rights allow grandparents to visit the child under a legal guardian’s supervision.
A court may sometimes award custody rights to grandparents. Grandparents with custody rights reside with the child, provide for basic needs, and make important decisions regarding the child’s upbringing.
Generally, for a grandparent to be awarded custody, the child’s parents must be unable or unwilling to raise the child. In addition, the grandparents must demonstrate that they are fit to raise the child.
An example of such a situation is where the child’s parents are deceased. Parents are also unable to raise a child if the parents are unfit. A parent may be deemed to be unfit for a variety of reasons. These reasons include:
- A court has determined that the child is residing in an unsafe home;
- A court has determined that the parent endangers a child’s well-being;
- The parent has engaged in child abuse or neglect;
- The parent has abused drugs or alcohol; or
- The parent suffers from mental illness that prevents the parent from being able to adequately care for the child.
Grandparents can demonstrate they are fit to raise the child if the grandparents are able and willing to raise the child. If a court determines it is in the child’s best interests to award custody to the grandparents, a court may award such custody.
Factors a court looks at in deciding whether is in the child’s best interests to award custody to grandparents, include:
- The grandparents’ financial ability to take care of the child;
- The grandparents’ physical and mental health;
- Whether the child desires to live with the grandparents; and
- Whether an emotional bond already exists between the child and the grandparents.
Visitation rights are different from custody rights. Visitation rights are much more limited than custody rights. Grandparents who have visitation rights may visit the child. However, grandparents may usually only visit the child under the supervision of the individual(s) with child custody (i.e, the child’s parents or legal guardian).
Under the law, grandparents do not have an inherent right to visitation. Rather, grandparents only have the right to request such rights from a family court.
Courts consider the following factors when deciding whether to grant the request:
- How far the parents reside from the grandparents;
- The grandparents’ style of life;
- Whether the grandparents engage in drug or alcohol abuse;
- The child’s desire to be visited by the grandparents;
- How attached the child is to their parents(s);
- How attached the child is to their grandparent(s); and
- Whether the parents have refused to allow the child to see their grandparents. All other things being equal, a court is more likely to award grandparent visitation rights if a parent has refused to allow the grandparents to see the child without any good reason.
If the court grants the grandparents’ request, the grandparents may visit the child. In such cases, a fixed visitation schedule is typically set up. The visitation schedule outlines whose home (parents or grandparents) will reside in on what days of the week. The schedule also addresses where the child will be dropped off or picked up. In addition, the schedule also addresses whom the child will be with during special occasions such as birthdays and holidays.
Judges typically prefer that the parents and grandparents work out a visitation schedule by themselves. If the parents and grandparents cannot agree on a visitation schedule, a court may impose one that takes the interest of the parents, grandparents, and children into account.
Because there is no inherent right to visitation, different states impose different requirements for grandparent visitation. Some states permit grandparent visitation upon a showing that visitation is the child’s best interests. Less lenient states make it harder for grandparents to obtain visitation rights. Some states only permit grandparents to visit their grandchildren in very limited circumstances, such as when the child’s parents have passed away.
Issues regarding grandparent custody and visitation rights can be complicated. If you are a grandparent and seek these rights, you should contact a child custody attorney. A qualified child custody attorney can advise you as to what your rights and options are, can assist you in preparing any required legal documents and can represent you in custody or visitation proceedings.