Child custody is divided into both the legal custody of the child, the individual who has the right to make life decisions for the child (including educational matters, health care, religious instruction, etc.), and the physical custody of the child, meaning the individual with whom the child will primarily reside. Child custody laws vary by state, but each state has laws covering the rights of grandparents. It is wise to consult an attorney with experience in family law matters to assist you in determining what your rights are in your state.
Generally, grandparents have the right to seek partial and/or full custody of or visitation with a grandchild by petition of the family law court. This right to custody could apply in a case where either one or both natural parents are deceased or when there is a divorce or separation. Also, if the grandparent feels that the child is in danger of either physical or mental abuse, or is in an unsafe or unfit environment due to drug use or mental illness, they have a right to petition the court. Another situation where a grandparent may seek custody of a grandchild is if the grandparent has had physical custody of the child for at least a year, and has acted in the role of a parent. This could be as a result of parental neglect or the death of the parent.
Visitation with the child can take place by mutual agreement with the parents or, if that is not possible, by order of the court. Generally a schedule is created, as with parental visitation, allowing the grandparents to see or speak with the child on certain days at certain times.
The burden of proof rests with the grandparents to show that it is in the child’s best interest for the grandparent to have custody of the child, that their concern for the child’s well being is genuine, and that the present relationship between the grandparent and grand child resulted from prior parental consent or court order. It is the obligation of the court to determine what are the best interests of the child or children when granting custody or visitation rights. Therefore, there needs to be a valid reason why a child would be better served by living with or visiting with their grandparents than by not doing so.
Grandparents may also seek visitation or partial custody, allowing them to visit with the grand child without parental consent or supervision. Once again, the burden of proof rests with the grandparent to show that the child may be subject to harm if such visitation is not allowed. In some instances, grandparents are allowed only supervised visitation. Although, grandparents are not generally denied visitation rights without a valid reason, the grandparents’ rights to visitation against the parents’ wishes is not always clear under the law.
It is best to seek legal advice from a family law expert when petitioning for grandparents’ rights, as the process can be complex and you will wish to ensure that it is handled in the best interests of the child.