Parents are often the central figures in child custody disputes. But grandparents can also have their say about visitation rights and custody.
Child custody and visitation disputes typically involve a child's parents, but not always. In many families, grandparents are heavily involved in child-rearing. Sometimes they are the primary caretakers.
This section includes information and tips on grandparents' rights. This includes summaries of state laws in child custody and visitation cases. We also cover the factors courts consider when making decisions involving grandparents.
Do Grandparents Have Rights to Their Grandkids?
Yes. Most states allow some level of visitation for grandparents. State law determines the child custody and visitation rights of grandparents. In some cases, grandparents may take custody of their grandchildren.
Grandparents' Rights: Child Custody Basics
Generally, grandparents seeking custody must prove the child's biological parents are unfit. Or, they will need to prove that it is in the best interest of the child to live with them. This is often a complex legal process that varies by state law and depends on many factors. Additionally, if the custodial parents object, the grandparents may need to go to court to request visitation or custody.
The United States Supreme Court has ruled that the parental rights of biological parents are fundamental. But in Troxel v. Granville (2000), the court ruled that grandparents may be granted court-ordered visitation or custody in some circumstances. And many state laws are much broader. They may include siblings and other family members. This is often called "third party" or "nonparent" visitation rights.
Some states are more restrictive. They may require that both parents are deceased before grandparents are eligible for child custody or "conservatorship." Otherwise, grandparents must prove to the court that taking custody is in the best interest of the child. There is judicial presumption favoring parental custody. A very close bond between the child and grandparent is usually insufficient evidence to overcome this presumption.
Ultimately, the court will determine the custody arrangement and parenting time. The court will use factors set out in state law.
How Grandparent Visitation Rights Are Granted
If parents or guardians encourage or at least allow grandparents to visit their grandchildren, then no formal process is required. But a grandparent (or another nonparent, like a stepparent) may approach the court to obtain court-ordered custody or visitation rights. In this case, the nonparent must prove custody is in the child's best interest. This means that decisions should be made in the best interest of the safety and well-being of the child's life.
Courts will consider several factors when making this determination, including (but not limited to):
- The child's relationship with the grandparent
- The relationship between the grandchild's parent and the grandparent
- How recently the child has had contact with the grandparent
- The effect visitation might have on the child and parent
- Whether grandparent visitation would unfairly interfere with the child's parental time
- Any history of child abuse or neglect by the grandparent
- Any history of mental illness of the grandparent
Grandparents entitled to custody of the child may also receive child support from the child's parents. This may happen if the grandparent has both legal custody and physical custody of the child. Child support should help with the minor child's needs. These needs may include food, shelter, and clothing. Child support from the child's parent can also be used for education and healthcare expenses.
Getting Legal Help With Child Custody
If you are a grandparent seeking child custody of your grandchild, you may want to talk to an attorney. A family law attorney can help you through the difficult child custody process. They can advise you on the custody laws and visitation laws of your state and how you can get custody of the child. Grandparent custody is more rare than parental custody. You may want to find a lawyer with experience in this type of child custody case.
Family law attorneys will help advise you on your legal rights and provide valuable legal advice. If you seek custody of a grandchild, speak to an experienced family law attorney today.
Learn More About Grandparent Child Custody Rights
Click on a link below to learn more about grandparents' rights with respect to custody and visitation. Talk to an attorney to learn more about the laws and procedures in your state.
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.
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.