There may be situations in which a grandparent needs to make a healthcare decision for their grandchild. In these situations, it is important to know what a grandparent’s rights are and how they can obtain additional rights if they need to.
Grandparents can play a very important role in their grandchild’s life by helping to ensure they have what they need and are properly cared for. If a grandparent believes they may need to obtain additional rights over their grandchild, this article will provide an overview of the possible options.
What Are the Grandparents’ Rights Laws?
In general, grandparents are not afforded the same rights and responsibilities as parents. They may petition a court for certain rights related to their grandchild.
There may be a situation, such as when a child’s parents have died or divorced, when the child’s grandparents may have either visitation rights or custody rights.
Visitation rights are rights that may be granted to a noncustodial parent, grandparent, or other individual. Typically, the child’s parents will agree to visitation rights and it will be incorporated into a visitation schedule that is approved by a court.
When a court is determining whether or not to grand visitation rights, a court will use the child’s best interest standard. When applying this standard, a court will examine certain factors, including:
- The overall well-being and age of the child;
- Depending on a child’s age, the preferences;
- The location of the grandparent’s residence; and
- The mental health or physical well-being of the grandparent.
It is important to be aware that the laws governing child visitation rights typically vary by jurisdiction. Typically, however, if all of the parties involved agree, they can submit their visitation agreement to a court for approval.
There may be situations in which a grandparent needs to raise their grandchild. This may occur for many different reasons.
A grandparent can petition a court for custody of their grandchild if they believe it is necessary. An individual who has child custody will have the child residing with them and will be responsible for the basic needs of the child, including food, clothing, and shelter.
In addition, the individual will be required to make decisions regarding the child’s medical treatment, education, and religious instruction.
In general, in order for a grandparent to be awarded custody, the parents must not be able or willing to raise their child. Additionally, the grandparent will be required to demonstrate that they are fit to raise the child.
A grandparent can demonstrate that they are fit to raise their grandchild if they are willing and able to raise their grandchild. The factors that a court will examine when deciding whether is in the child’s best interests to award custody to grandparents, include, but may not be limited to:
- 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;
- Whether the parents have refused to permit their child to spend time or visit with their grandparent;
- The grandchild’s desire to spend time with or visit their grandparent;
- How attached a particular grandchild is to their grandparents;
- The current type of relationship that a grandparent has with their grandchildren, for example, are they close, have they never met them, etc.;
- Whether a healthy emotional bond already exists between the child and their grandparents; and
- The background and lifestyle of the grandparent, which includes if they abuse drugs or alcohol.
What Factors Influence Grandparents’ Rights?
Grandparents may have some grandchild visitation rights, or at least a legal means to obtain them, when they want to visit or spend time with their grandchild. These rights, however, are typically not as extensive as the rights that the parent has over the child.
Certain states may provide greater rights to grandparents, have different regulations, and have different rules regarding whether or not the grandparent is considered a child’s legal guardian. Because of this, it is important that a grandparent review or have a lawyer review the applicable laws in the state where they reside before taking any legal action.
Although the majority of states provide limited rights to grandparents who seek visitation, these rights vary widely. Most courts, however, determine that it is in a grandchild’s best interest to develop a relationship with a grandparent who can provide a safe and healthy environment.
There are some states that provide that grandparents do not possess natural rights to visit with their grandchild, as they are not a parent. Because of this, a parent or other legal guardian may have to be present during the visits, even if the court orders them.
A court may grant custody of a grandchild to their grandparent when the parents are unfit, unwilling, or unable to raise the child. Custody will not automatically be granted simply because an individual is the child’s grandparent.
When Can Grandparents Make Medical Decisions?
Grandparents may be able to make medical decisions in certain situations. In some instances, the parents may give the grandparents medical consent and authority to make decisions on the child’s behalf.
A parent may be able to provide these rights to a grandparent using a power of attorney. This may be necessary in situations where the parent is not available to make decisions, for example, if they are deployed overseas.
A grandparent may be able to obtain a medical consent form that allows them to make decisions on behalf of their grandchild if the parents are not available.
What Are the Legal Processes Grandparents Can Use to Obtain Medical Decision Making Rights?
There are several different legal processes that a grandparent may use to obtain medical decision making rights over their grandchild, including:
- Adoption: Courts are typically apprehensive of permanently terminating the legal relationship between a child and their biological parents;
- If adoption is permitted in 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 may assume legal responsibility for the child;
- In general, most states will attempt to place the child in the home of a close relative, such as a grandparent in an effort to maintain some sense of normalcy for the child;
- Legal guardianship: Under a legal guardianship, the child’s parents continue to retain their parental rights but a court order or legal document will give the grandparents the authority to care for the child;
- Power of attorney: With a power of attorney, a grandparent is given the authority to make specific decisions about the child;
- It is important to note that the grandparent would be limited to the circumstances described within the power of attorney;
- In addition, the power of attorney may be terminated at any time by the child’s parent;
- Shared custody: Shared custody between parents and grandparents works similar to shared custody between two parents. Parenting responsibilities are divided equally between the child’s parents and grandparents; and
- Visitation rights: Some states may allow for grandparent visitation rights, even if the state does not allow for other types of custody arrangements;
- A grandparent would need to petition the court for court-ordered visitation rights.
It is important to note that there are different variations of physical and legal custody. This means that a grandparent may not be awarded both types of custody.
In addition, a power of attorney may be awarded to the child’s other parent or another relative. If the parties are seeking to reach an agreement on these issues, a court may order family mediation.
This is a process in which a neutral third party helps the parties come to an agreement. If mediation is not successful, the parties can still take their claims to court.
What Have the Courts Said About Grandparents’ Rights and Healthcare Decision Making?
In 2000, the United States Supreme Court held, in Troxel v. Granville, that fit parents are presumed to be acting in their child’s best interests and no state should second-guess or interfere with the parent’s decisions if they deny visitation with grandparents. As a result, many states revised their visitation laws to try and provide grandparents with more rights.
However, the Supreme Court continued to affirm this stand by declaring that Alabama’s Grandparent Visitation Act was unconstitutional because it violated the rights of parents to raise their children because it did not include a presumption that favored parents.
Even with these decisions, the issue has not been fully resolved. The laws still vary between states and continue to evolve.
How Can Grandparents Be Supported?
There are many ways grandparents can be supported when they are trying to do what they think is best for their grandchild and build a relationship with them. It is important for a grandparent to consult with a lawyer to learn what their state offers as far as rights and protections.
A grandparent can also try their best to build strong family relationships with the child’s parents. This will likely make the parents more agreeable to visitation and providing the grandparents with decision making rights.
It can be confusing and difficult to navigate the healthcare system. Healthcare professionals can support grandparents by explaining issues to them as well as how they can obtain the ability to make medical decisions for their grandchild.
Should I Consult with a Lawyer?
If you are a grandparent who is interested in obtaining custody or visitation rights with your grandchild, it is essential to consult with a family law lawyer. Your lawyer can explain the laws of your state, what legal processes may be available to help you obtain custody or visitation rights, and help you complete the process that best fits your situation.
If you are required to go to court to obtain visitation or custody, your lawyer will represent you. Whenever possible, it is important for you to have open communication with your family members and work together to find a resolution that is best for your grandchild.
