Reasons Grandparents Can File for Custody of Grandchild

Grandparents often form a special bond with their grandchildren and play an essential role in supporting their growth and development. In an ideal world, these children also grow up in a stable household with both biological parents. Many circumstances, however, may not make this idealistic setting possible. 

Situations such as a parent’s death, ill health, divorce, or child abuse may compel grandparents to seek custody rights. When engaging in the legal process for child custody, grandparents are often shocked to learn what their rights are under family law regulations in their state. Thus, it is wise for grandparents to be informed and educated in this area prior to deciding which road to embark on with respect to their grandchild’s well-being.

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What Are the Benefits of Grandparents’ Rights?

Research suggests that children who have regular contact with their grandparents develop positive social and emotional behaviors, such as:

  • Increased independence;
  • Lower incidences of depression and anxiety;
  • Well-developed social skills; and
  • An appreciation of culture and family customs.

For these reasons, grandparents’ involvement and connection with their grandchild should be maintained to support the child’s emotional development. As some of us may know all too well, however, family relationships can be complicated, and the child’s parents or other family members may affect the grandparents’ relationship with the child.

Grandparents’ legal rights can be separated into two distinct areas: visitation rights and custody rights..

Grandparent visitation rights

Grandparent visitation rights vary from state to state but have been recognized for 40 years. Grandparents must prove that the grant of visitation is in the child’s best interest.

Factors that may affect a grandparent’s visitation rights include:

  • The parents’ marital status;
  • Proof of a pre-existing relationship between the grandparent and the child;
  • One parent is deceased (required by a small number of states before visitation is awarded); and
  • Evidence that the child will suffer harm if grandparent visitation is not granted.

Grandparent custody rights

Grandparents may apply for full physical custody of a grandchild in specific cases. Generally,  parental rights are prioritized in child custody cases, which can make it very challenging for a grandparent to obtain custody.

Five factors relevant to grandparent custody being granted include:

  1. The child’s parents are deceased;
  2. The child’s parents are deemed unfit to maintain legal custody;
  3. The child’s parents give full consent to grandparent custody;
  4. The child has been living with the grandparents for at least one year; and
  5. The child is at risk for abuse.

How can I get custody of my grandchild?

If you believe your grandchild is at risk of harm or is better off in your care, you may file a petition for custody with the court. A family law attorney can guide you through the process and represent you in legal proceedings. Continue reading below for a further discussion on how grandparents can obtain custody of a grandchild and the key factors to consider before doing so.

Types of Child Custody

Child custody is generally defined as the delegation of parental responsibilities in providing care for a child under 18 years.

Custody can be further categorized into four types:

  • Legal custody – the ability to make decisions about the child’s health and well-being, such as medical decisions and school enrollment;
  • Physical custody – the right to have the child physically live with the parent or guardian;
  • Joint custody – two or more parties share the responsibility of making decisions regarding the child’s health and well-being; and
  • Sole custody – one parent or legal guardian has both legal and physical custody of the child. A parent or guardian with sole custody need not consult other parties when making decisions concerning the child.

The court may order any combination of these custody scenarios depending on the specific circumstances.

Most Popular Reasons, When Grandparents Can File for Custody of Grandchild

Over 10% of children in the United States live with their grandparents. One-third of these children are raised solely by their grandparents without parental involvement. Factors such as poverty, the death of a parent, child abuse, drug or alcohol use, or mental health problems may result in the child living with the grandparents.

Despite providing full-time care for their grandchild, many grandparents may not have official legal custody. In addition, grandparents may fear for the safety and well-being of their grandchild if the custodial parent is not providing adequate care. It is therefore essential for grandparents to know when to seek custody of their grandchild.

Custody of child when parents are divorced

Divorce can be complicated and unfortunately, grandparents can be unfairly punished in the process. During the divorce proceeding, the other partner may restrict the grandparents’ visitation rights in a retaliatory attempt to cause emotional pain and suffering. The divorce may also lead to a custody situation that is unsafe for the child.

Grandparents who are restricted access to their grandchild should seek the advice of a family law attorney to file a petition for visitation rights. If the child is unsafe in the custodial parent’s care, the grandparents may further choose to fight for full custody.

Custody of child when one of the parents died

In the event one parent dies while still married, the courts will usually award custody to the surviving parent. A legal petition for visitation rights can be filed if the surviving parent denies grandparent visitation after the death.

If the surviving parent is not deemed fit for full custody of the child, grandparents may seek to obtain either joint custody or full custody through the courts.

If the child is already living with the grandparents at the time of the custodial parent’s death, the grandparents will have a stronger case for custody. Stability and consistency of care are essential elements that the courts consider in custody cases. The courts are also more likely to grant custody to the grandparents if the deceased custodial parent conferred guardianship to the grandparents in a legal will or if the grandparents can prove that the child wishes to remain in their care. 

Custody of child when parents died

If both parents die unexpectedly and a child is left without a legal guardian, the courts will commonly grant custody to immediate family members such as grandparents or siblings. This situation can be highly emotional, and it is not uncommon for multiple family members to seek custody of the child. Should this happen, the courts will consider the age and financial stability of each family member to determine who is best suited to raise the child.

Custody of child when parents are disadvantaged

One in six children in the United States lives in poverty. A child growing up in a disadvantaged environment may have a higher risk of developing psychological problems.

Parents may struggle to provide essential care, such as:

  • Food and nutrition;
  • Medical care;
  • Education and school expenses; and
  • A safe shelter.

Grandparents should first try to support the disadvantaged custodial parents to preserve the family relationship. For instance, if the parents are in poverty or are struggling with ongoing substance abuse or illegal activity putting the child at risk of harm, grandparents may want to seek individual help for the parents as well as legal guidance to protect the child.

Custody of child when the parents are alcoholics or drug addicts

A recent analysis revealed that one in eight children lives with at least one parent suffering from substance abuse. Parental drug and alcohol abuse can have a very detrimental impact on a child’s development. A parent suffering from substance abuse may be unable to deliver the required level of care to meet the child’s basic needs, such as food, shelter, and safety. Substance abuse may also give rise to incidents of child abuse if the parent’s behavior is volatile or dangerous.

The courts take a serious stance on parental substance abuse in child custody cases. Parents can lose physical custody of the child and may be limited to only supervised visitation if the child’s well-being and safety are in danger.

A grandparent wishing to pursue custody of a child due to parental substance abuse will need to provide such evidence to the court. The court will consider the type of substance being abused and whether the abuse is ongoing or occurred in the past.

Suppose the issue of substance abuse is severe and has been brought to the attention of Child Protective Services. In that case, the courts may remove the child from the custodial parents and seek either a temporary or permanent custody arrangement with immediate family members, such as grandparents.

How can grandparents get custody?

The courts’ decision on child custody will always hinge on the child’s best interests. Grandparents will have to prove that they are fit and healthy and have a stable financial situation permitting them to provide quality care for the child. The parent’s rights to maintain child custody are substantial, so grandparents will need to have a robust case to successfully obtain custody.

Steps Grandparents Should Take to Help Get Custody

Are you a grandparent interested in obtaining custody of your grandchild? Although it’s not an easy decision to make and may involve an emotional and challenging legal process, it can also be a smooth transition for all parties involved, ultimately leading to the most optimal environment for the child.

There are many factors and steps to consider when applying for custody.

Seek visitation

If you are in a situation in which your visitation rights have been denied, seek the professional guidance of a family law attorney. Maintaining visitation rights is vital in preserving the relationship and continuity of contact with the grandchild. Keeping the relationship with the grandchild allows communication to remain open and gives the child the opportunity to share any problems she may be facing at home. In a child custody case, the courts will consider the amount of time the child spends with the grandparents, so maintaining visitation rights is an important step.

Support the role of the parents

A child’s relationship with his biological parents is essential for his social and emotional development. Grandparents should therefore seek to support the custodial parents in providing quality care to the child. If neither parent has been deemed unfit to carry out their parenting duties, it is improbable that you will obtain custody in court, in which case it is best to try to support the parents and preserve a stable, loving relationship with the grandchild.

Know when to get involved or call the authorities

If your grandchild is currently involved in a custody hearing due to divorce or other reasons, try to support your adult child in his fight for custody. Seek ways to offer support and stability, like providing accommodation or financial assistance. If your adult child is successful in his claim for custody, you will be more likely to maintain visitation rights and protect your relationship with your grandchild.

Consider contacting the authorities if you truly suspect your grandchild is in severe and immediate danger. The authorities have the power to place the child in your care while a full investigation is carried out.

Consider the possible consequences of a custody claim

A child custody case can be highly emotive and has the potential to cause irreparable damage to family relationships. The child’s best interests should always be a priority, but it is also crucial to consider the consequences of any action taken by the parties involved, as some consequences may have a lasting effect on the family. 

How to get custody of a grandchild?

If you decide to petition for custody of your grandchild, the first step is to be aware of the family law regulations in your state. Assess the situation carefully and seek the guidance of a professional family law attorney to maintain your rights and protect your grandchild.

Other Circumstances in Which Grandparents May Get Custody of Grandchild

There are some circumstances in which grandparents are granted custody of a grandchild without any legal action taken against the custodial parents:

  • The grandchild is old enough to communicate her desire to live with the grandparents;
  • Both parents agree to award custody to the grandparents;
  • State authorities have permanently removed the child from the parent’s custody and requested the child be placed in the grandparents’ custody; and
  • A valid will grants custody to the grandparents in the event of a parent’s death.

Conclusions 

Families are complex ecosystems, and many factors can contribute to the decision to seek custody of a grandchild. Grandparents play a vital role in a child’s emotional and social development, and the relationship should be preserved. The child’s emotional and physical well-being must be the number-one priority in any situation. If you believe your grandchild is at risk of harm, seek legal guidance to explore your rights as a grandparent. Your grandchild may be depending on you.

Article by Megan Thompson

Megan Thompson is a legal writer at Lawrina. Megan writes about different law practice areas, legal innovations, and shares her knowledge about her legal practice. As a graduate of the American University's Washington College of Law she is an expert of law in Lawrina's team and has a slight editing touch to all content that is published on the website.

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