Can Grandparents Be Awarded Custody of Grandchildren

Can Grandparents Be Awarded Custody of Grandchildren?

Family structures are evolving, and in many households, grandparents play a vital role in raising children. Sometimes, due to unforeseen circumstances, such as parental illness, substance abuse, incarceration, or even death, grandparents may step in to care for their grandchildren full-time. In such cases, a question naturally arises: Can grandparents be awarded custody of their grandchildren? The short answer is: Yes, but it’s complicated.

Courts typically favor biological parents when it comes to custody, but under certain conditions, grandparents can obtain legal custody if it is in the best interest of the child. It is helpful to understand when and how grandparents can be awarded custody, the types of custody available, and what legal factors courts consider.

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First, it’s important to understand the distinction between the two core types of custody.

  • Legal custody: The right to make important decisions about a child’s life, including education, healthcare, and religious upbringing.
  • Physical custody: The right to have the child live with you and be responsible for their day-to-day care.

A court may grant full custody (both legal and physical) or split these rights between multiple parties.

When Can Grandparents Seek Custody?

While courts generally presume that a child’s best interests are served by being with one or both biological parents, this presumption can be challenged if the parents are unfit, unavailable, or unwilling to care for the child.

Here are some common situations in which grandparents may seek custody:

Parental Unfitness

If the parents are dealing with addiction, mental illness, neglect, or abuse, a grandparent may petition the court for custody. Courts will consider whether the child’s physical or emotional well-being is at risk.

Death or Incarceration of a Parent

If one or both parents are deceased or incarcerated, a grandparent may step in to assume full custody, especially if they’ve already been providing primary care.

Parental Abandonment

If a parent has abandoned the child, by not visiting, supporting, or maintaining contact for an extended period, a grandparent may be eligible for custody.

Voluntary Placement

Sometimes, a parent may voluntarily place their child with a grandparent during a difficult time, such as financial hardship or medical treatment. The grandparent may then pursue legal custody to secure medical or educational decisions on behalf of the child.

What Does the Court Consider?

The legal threshold for awarding custody to a grandparent varies by state, but in general, courts will look at the best interests of the child. Factors often include:

  • The emotional relationship between the grandparent and the child
  • The stability and safety of the grandparent’s home environment
  • The child’s current living situation and level of adjustment
  • The physical and mental health of all parties involved
  • Whether the grandparents have been the primary caregivers
  • The wishes of the child (depending on age and maturity)

Types of Custody Arrangements Available to Grandparents

There are different legal avenues grandparents may pursue depending on the situation:

Judge Gavel And Striking Block Over Law Book With Guardianship Law Text On Wooden Desk

Temporary Guardianship

This allows a grandparent to temporarily make decisions for the child. It’s often used when a parent is hospitalized, deployed, or in rehab. This arrangement can sometimes be established without a court order through a notarized agreement.

This more formal arrangement, often granted through probate or family court, allows grandparents to make medical, educational, and other important decisions. Guardianship can be revoked if a parent becomes fit and petitions the court.

Custody Through Family Court

If the child is removed from a parent’s custody (by the state or voluntarily), grandparents may petition for legal and physical custody through the family court system.

Adoption

A grandparent may adopt the child in extreme cases where parental rights have been terminated. Adoption permanently severs the legal parent-child relationship and transfers all rights and responsibilities to the grandparent.

How to File for Custody as a Grandparent

If you’re considering filing for custody of a grandchild, here are the general steps involved:

Consult a Custody Attorney

Every state has different laws, deadlines, and procedural requirements. A skilled child custody lawyer can advise on your rights and increase your chances of success.

File a Petition in Family Court

You’ll need to formally request custody or guardianship with the family court in the county where the child resides. Your petition should outline the reasons for seeking custody and provide evidence of the parent’s inability to care for the child.

Serve the Parents

The child’s parents must be formally notified of your petition and given a chance to respond. If they oppose your request, a court hearing will be scheduled.

Attend a Custody Hearing

You will need to present evidence showing why living with you is in the child’s best interests. This may include witness testimony, medical records, school records, and proof of an established relationship.

Comply With Background Checks and Home Evaluations

Courts may require a background check and home inspection to ensure the child will be in a safe and supportive environment.

Challenges Grandparents May Face

Challenges Grandparents May Face

While courts are sympathetic to the important role grandparents often play, it’s not always easy to be awarded custody. Here are a few potential hurdles:

  • Strong parental objections
  • Lack of financial resources
  • Physical limitations due to age or health
  • Inadequate living arrangements
  • Lack of legal documentation or proof of endangerment

It is advisable to work with an experienced child custody attorney during this process. With proper legal support and a compelling case, many grandparents are successful in securing custody or guardianship.

What if the Child Is in Foster Care?

If a child has been removed from their parents by Child Protective Services (CPS), grandparents are often given priority consideration for placement under a concept known as kinship care. While this may not initially involve legal custody, it can be a first step toward long-term placement or guardianship.

Courts typically favor keeping children with relatives whenever possible, provided the home is safe and the caregiver is capable.

Speak with a Skilled Child Custody Lawyer Right Away

An experienced child custody attorney understands how emotional and complex these cases can be. Whether you’re stepping in during a family emergency or fighting for custody after years of caregiving, your custody lawyer will be there to support you every step of the way. They can guide you through the legal process, file the necessary paperwork, and represent your case in court.

Your grandchild’s well-being is our top priority. Contact us today to schedule a confidential consultation and learn more about your options.

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Larry Manassa
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