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Grandparents’ Custody Rights

Traditionally, grandparents have had no rights to custody, or even visitation, of their grandchildren. Within the last several years, however, grandparents have been gaining rights in this area. In fact, most states allow visitation, and several now allow custody, in certain situations.
 
Custody
 
Jurisdictions vary greatly as to whether grandparents may obtain custody of their grandchildren. Generally, if the parents are still alive and have not been deemed unfit, grandparents have no legal right to custody. This is based on the parental rights doctrine, which provides that parents who are willing and able to care for their children have a right to custody of their children above the rights of all others. Thus, in order for grandparents to obtain custody, they have the burden of showing that the parents are unfit in addition to a determination of what is in the child’s best interest.
 
There are situations in which grandparents may obtain legal custody of their grandchildren. If both parents are no longer living, or if there has been an adjudication of dependency, neglect, or abuse, the grandparents can usually take custody. Also, if the child has been in the physical custody of the grandparents for an extended length of time, grandparents may be able to overcome the parental preference. Obviously, if the parents consent to a change of custody, grandparents can obtain custody. Then, if either of the parents wishes to regain custody, they will need to show a change in circumstances and a determination that custody with the parent is in the child’s best interests.
 
In the absence of special circumstances, a grandparent’s obtaining custody is very difficult. If the grandparents believe that the child is in danger with the parents, the grandparents may need to follow the procedures for reporting the parents for dependency, neglect, or abuse. This can be anonymous. The appropriate state agency will then investigate the situation. If conditions warrant, the child will be removed from the home. The grandparents can then agree to placement and be investigated for their own “fitness” to raise the child. This can be a very difficult experience for everyone involved, but it may be necessary if the child is truly in a dangerous situation.
 
Visitation
 
Most states now permit grandparent visitation rights if it is in the best interest of the child. This is common where the parents are divorced or one parent has died, leaving the grandparents with no other method of seeing the child. In the absence of these conditions, jurisdictions vary greatly on their statutory requirements and general practices in permitting grandparents to obtain visitation. Some courts follow strict statutory factors, while others look to the child’s best interest in maintaining a relationship with the grandparents.
 
If the parents have given the child up for adoption, some states will permit grandparents to visit the child, while others consider all grandparents’ rights terminated. If the child has been adopted by a stepparent or a relative, the grandparents are more likely to be able to obtain visitation rights.
 
The types of visitation schedules will very by jurisdiction, just as they do for noncustodial visitation rights. Also, grandparents can sometimes be ordered to only have supervised visitation. The supervision is sometimes by court-approved individuals or agencies, but it may also be by other individuals agreed upon by the parties.
 
Additional Resources
 
General Information:
 
The Grandparents Rights Organization - http://www.grandparentsrights.org/
 
Grandparents Legal Rights - http://www.grandparenting.org/
 
Grandfamilies State Law and Policy Resource Center (has a state law and legislation database) - http://www.grandfamilies.org/
 
Some state-specific information:
 
 
 
 
 
 
 
 
 
 
If you have a subscription to lexis.com, you can access Family Law & Practice for more information on this topic. Written by a distinguished group of matrimonial practitioners and family law experts from across the country, Family Law & Practice is national in scope and practice-oriented, providing guidance for every stage of a family law proceeding from initial client contact through modification and enforcement.