Court Considerations: Grandparent Visitation and Custody

The laws surrounding grandparents' visitation rights vary by state. But, they are always intended to support the best interests of the child. For instance, state laws favor grandparent custody when the custodial parent(s) are unfit to care for their child or have died.

Visitation also may be granted where it can be shown the child would benefit from a relationship with their grandparent(s) if it's otherwise not being facilitated through the parents.

Courts will only order grandparent visitation or custody when particular conditions are met. In many instances, the required conditions for a grandparent custody action are completely different for a grandparent visitation rights action.

It's important to understand the court considerations in these cases before filing a petition for grandparent visitation or custody.

The following article briefly overviews grandparents' rights and custody of their grandchildren.

Grandparents' Rights Generally

Grandparents may seek custody or visitation rights of their grandchildren in certain circumstances. But these rights are not automatic. They depend on the parental rights and custody of the child.

In some cases, grandparents may seek custody of a grandchild if the child's parents are unable or unwilling to care for them. This may involve a legal process to establish custody rights, including child support payment.

Grandparents may also seek visitation rights if a child's parents are divorced, separated, or deceased. But the legal rights of grandparents and other non-parents in child custody cases may vary by state.

To establish custody or visitation rights, grandparents may need to prove a close relationship with the grandchild. They must also show that their involvement in the child's life is in the child's best interests. But, the constitutional right of parents to make decisions is prioritized.

Considerations for Grandparent Visitation or Custody

In all states, the court must consider the best interests of the child when ruling on a case involving minor children. As a result, this "best interest" standard is used by courts when determining whether to grant custody or visitation rights to a grandparent.

In some states, the "best interest" statute lists factors the court should consider in a visitation or custody case. Other states do not provide a list of factors in the statute. But, courts in those states typically identify factors in custody and visitation cases by interpreting the state statutes.

The following factors have been commonly used in many jurisdictions to determine the best interests of the child involved in the custody or visitation dispute:

  • The needs and the welfare of the child
  • The capability of the parents or grandparents to take care of the child
  • The wishes of the parent(s) and the grandparent(s)
  • The wishes of the child, if the child is capable of making decisions for themselves.
  • The strength of the relationship between the grandparent(s) and grandchild
  • The length of the relationship between the grandparent(s) and grandchild
  • Evidence of abuse or neglect by the parent(s) or grandparent(s)
  • Evidence of substance abuse by the parent(s) or grandparent(s)
  • The child's adjustment to the home, school, or community
  • The ability of the parent(s) or grandparent(s) to provide love, affection, and contact with the child
  • The distance between the child and the parent(s) or grandparent(s)
  • Any evidence of mental illness of the grandparent(s)

Ultimately, the court will prioritize the safety and well-being of the child. If a party shows parental unfitness, the court may decide that the grandparent is best suited to take custody of a child.

What Types of Custody Arrangements Are Possible?

The court typically grants joint custody to separating parents. But this custody arrangement (including joint physical custody or joint legal custody) is not as typical among grandparents.

Typically, the court may grant sole physical custody or sole legal custody of the child, or both, to a grandparent. Physical custody refers to where the child lives and who cares for the child daily. Legal custody refers to the ability to make major decisions on the child's behalf.

Remember that court orders can always be modified. A custody arrangement may be temporary. If there is a big change in the circumstances, the parties can ask the court to revise the custody order.

What if the Biological Parent Is Abusive?

If a grandparent can show that a grandchild's parent is abusive, unfit, or incompetent, courts are far more willing to grant permissive rights to grandparents if it's in the best interests of the child. In some cases, courts may enter a permanent order. Courts often favor visitation and custody (usually temporary) during the divorce.

Can Other Non-Parents Get Custody or Visitation Rights?

Yes. In certain situations, non-parents may be able to seek custody or visitation rights of a child. This can include stepparents or other family members with a close relationship with the child. The legal rights of non-parents vary by state.

To seek custody or visitation rights, non-parents may need to demonstrate, among other things, they have a substantial relationship with the child. They also must prove their involvement in the child's life is in their best interests.

Involving Courts in Grandparent Custody and Visitation vs. Mediation

It's usually best to resolve grandparenting time problems amicably instead of through the courts. A parent struggling to manage parenting duties may be open to help from grandparents. If not, it may be that the parent who's refusing access will be amenable to having the dispute mediated by a qualified professional. It's usually best to make litigation a last resort.

Get Legal Help with Your Grandparents' Visitation or Custody Case

If you want to get custody of your grandchild, consider speaking to an attorney. Court consideration for child custody and visitation requests varies widely from state to state. It's wise to consider consulting a family law attorney for advice.

A lawyer can assist you in understanding the laws in your state. They can help determine the right approach to child custody and visitation. They will provide you with valuable legal advice.

Reach out to an experienced family law attorney near you today.

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Can I Solve This on My Own or Do I Need an Attorney?

  • Both parents can seek custody of their children — with or without an attorney
  • An attorney can help get the custody and visitation agreement you want
  • An attorney will advocate for your rights as a parent

A lawyer can help protect your rights and your children's best interests. Many attorneys offer free consultations.

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Don't Forget About Estate Planning

Once new child custody arrangements are in place, it’s an ideal time to create or change your estate planning forms. Take the time to add new beneficiaries to your will and name a guardian for any minor children. Consider creating a financial power of attorney so your agent can pay bills and provide for your children. A health care directive explains your health care decisions and takes the decision-making burden off your children when they become adults.

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