Many states have laws that permit a court to award custody of minor children
to a grandparent or other third-party with a significant relationship
with that minor child. Because these laws can infringe on a biological
parent’s fundamental rights to parent their children, the laws must
be tailored to meet a compelling state interest in protecting the welfare
and safety of children.
A constitutionally permissible law that allows a court to award custody
to a grandparent often requires the grandparent to:
- Overcome a presumption that a legal parent acts in the best interest of
his or her children
- Show that it is likely the children will suffer some detriment if custody
is awarded to the biological parent(s)
In such cases the grandparents and the biological parents are not on equal
footing. Courts do not simply compare the grandparents’ and the
biological parents’ respective parenting abilities to determine
who should be awarded custody. Grandparents involved in these cases (who
objectively appear better able to parent and provide for their grandchildren)
are frequently shocked to lose custody to a parent who has deficient parenting skills.
The evidence that a grandparent must present in such cases varies by jurisdiction.
Grandparent custody cases are often very challenging, and grandparents
who wish to seek custody of grandchildren should consult with a lawyer
who is familiar with third party custody cases. The lawyer can help grandparents
fully consider their chances for success and plan how to improve those
chances. Grandparents should also consider whether court ordered visitation
is a viable option.
What Steps Should I Take in Seeking Custody of My Grandchildren?
If you are a grandparent seeking custody of your grandchild, consider the
CONSIDER THE LONG-TERM CONSEQUENCES OF YOUR ACTIONS.
If you are caring for a grandchild who is safe and happy in your care,
and the biological parent(s) are content with that arrangement, carefully
consider the probability of success before filing an action to formally
seek custody. Filing for custody can irreparably alienate the biological
parent(s), and if you fail to prevail in your case, it may negatively
affect your relationship with your grandchildren. If you need the authority
to undertake parental activities on behalf of your grandchildren, you
could contact a lawyer to discuss becoming a legal guardian for the children.
KNOW YOUR ADVERSARIES.
Remember that your grandchildren likely have two parents. Generally, an
unfit parent is more likely to have children with someone who is similarly
unfit. Investigate whether you would be able to prevail in a grandparent
custody case against both parents. If the other parent is the father,
check to see whether he has been legally determined to be the father.
If known, both parents will need to be served with notice of any custody
action that affects their parental rights. If both parents appear in the
case, you may face the challenging prospect of proving your case against
both biological parents. If you are only able to prove your case against
your own child, you may create the unintentional consequence of custody
being awarded to the other parent.
USE ANY TACTICAL ADVANTAGE.
Be prepared to take advantage of any situation where the biological parent(s)
would be unable to safely care for the children. Examples include seeking
custody after the biological parent(s) are arrested or convicted of a
crime, or if suffering mental illness, engaged in an addiction, or involved
with physically abusive partners. If your grandchildren’s parents
are marginally fit to parent they may have periods of heightened and decreased
parenting abilities throughout their children’s lives. Taking advantage
of the situation during a decrease in the parent’s abilities will
help you prevail and insulate your grandchildren from future instability.
CAREFULLY CONSIDER CONTACTING THE AUTHORITIES.
If your grandchildren are in danger of abuse or neglect it is appropriate
to ask state child abuse officials to initiate a protective action and
investigation. You can request that the children be placed in your care
if they are removed from the biological parents. DO NOT make false or
exaggerated reports or claims to try to gain a tactical advantage. The
state reporting agencies are aware that people involved in custody disputes
do exaggerate and falsify claims of child abuse, and they will develop
written records and may write recommendations that subsequently harm those
people in court.
KNOW WHEN AND HOW TO GET INVOLVED.
If your grandchildren are in a custody battle between two barely competent
parents, consider supporting and encouraging and supporting your own child’s
ability to parent instead of intervening in the case. Perhaps provide
housing or other support for your child to help provide stability for
your grandchildren. If your child has custody and you have regular contact
with your grandchildren, you will be in a better position to protect your
grandchildren if your child’s ability to care for them declines.
SUPPORT YOUR GRANDCHILDREN’S RELATIONSHIPS WITH THEIR PARENTS.
In a circumstance where your child is clearly unfit and the other parent
is clearly fit, your chances of prevailing in an action to obtain custody
of your grandchildren are slim. Remember that your grandchildren’s
relationships with their parents are important for their development.
Support the parent who can best care for your grandchildren to help foster
open access and communication with your grandchildren. If necessary, be
a resource to supervise contact between your child and your grandchildren.
Consider negotiating with the other parent for formal visitation rights.
Many states have laws that permit grandparents or step-parents to seek
visitation with children if their relationship is similar to a parent-child
relationship or if there is a significant ongoing personal relationship.
Be prepared to have your lawyer seek custody and, as an alternative, visitation.
Visitation can help you to preserve your relationship with your grandchildren
who can then turn to you if the custodial parent’s fitness starts
Each state has different laws granting grandparents or other third parties
certain rights to have relationships with minor children. Before taking
any action or expressing any intention to seek custody of grandchildren,
you should discuss the facts of your case with a lawyer in your jurisdiction
familiar with such issues. Be prepared to honestly discuss:
- Your role and the role of each biological parent in your grandchildren’s lives
- The role of the child’s extended family, including other grandparents
- The extent to which you have undertaken parenting functions
- Your concerns regarding your child’s parental fitness
- The other parent’s parenting strengths and weaknesses
The more information you can provide the more likely your counsel can successfully
guide you to protect your grandchildren and their relationship with you.