First, in order for a grandparent to be able to file a motion for custody or visitation with the Court, one of the following three circumstances must be present:
- The child’s parents are unmarried.
- The child’s parents are going through a divorce, dissolution of marriage, legal separation, annulment or child support proceedings.
- The child is involved in an abuse, dependency, or neglect case.
How can a Grandparent Obtain Custody of a Child?
Obtaining custody of a grandchild can be very challenging because the Courts consider the right of parents to care for their children a fundamental right.
The U.S. Supreme Court held in Troxel v. Granville, that the parents’ right to the custody of their children is paramount to any custodial interest in the children asserted by a non-parent, including a relative like a grandparent. However, there are three ways in which parents can lose their paramount right to care for their children.
- The child can be adjudicated an abused, neglected, or dependent child by the Court.
- A parent can relinquish custody of the child through an agreement or contract.
- A parent can be found by the Court to be unsuitable to care for the child.
Once one of the above criteria is met, the Court will then determine whether it is in the child’s best interest for a third party, like a grandparent, to be awarded custody.
This high burden can be very difficult for many grandparents to understand, especially if they have provided substantial care for their grandchildren or even cared for their grandchildren exclusively for many years due to a child’s drug use or indifference or other circumstances.
Although the burden is high, it is not insurmountable and every case is different. If you are seeking custody of your grandchild, it is best to discuss your situation with a family law attorney.
How can a Grandparent Obtain Visitation Rights?
Once a motion for visitation rights is filed with the Court, the court will grant grandparent visitation if it determines that it is in the best interest of the child. When determining whether it is in the child’s best interest, the court will consider the following factors:
- The prior interaction and interrelationships of the child with the grandparents;
- The geographical location of the grandparents’ residence and the distance between the grandparents’ residence and the child’s residence;
- The child’s and parents’ available time, including, but not limited to, each parent’s employment schedule, the child’s school schedule, and the child’s and the parents’ holiday and vacation schedule;
- The age of the child;
- The child’s adjustment to home, school, and community;
- The wishes and concerns of the child;
- The health and safety of the child;
- The amount of time that will be available for the child to spend with siblings;
- The mental and physical health of all parties- grandparents, parents and child;
- The willingness of the grandparent to reschedule missed visitation;
- Whether the grandparents have been previously convicted of or pleaded guilty to any criminal offense involving any act that resulted in a child being an abused child or a neglected child; whether the person, in a case in which a child has been adjudicated an abused child or a neglected child, previously has been determined to be the perpetrator of the abusive or neglectful act that is the basis of the adjudication;
- The wishes and concerns of the child’s parents, which must be afforded special weight by the Court;
- Any other factor in the best interest of the child.
If you are considering filing for visitation rights with your grandchildren, it is advisable to consult with a family law attorney.