Custody and grandparents' rights: Here's what you need to know

Grandparents are often surprised to learn about their state's laws regarding custody of grandchildren. See how you can get custody and what you must prove to get it.

by Ronna L. DeLoe, Esq.
updated May 11, 2023 ·  3min read

There are many different scenarios in which grandparents seek to get custody of their grandchildren. Such cases are often fraught with emotion because the judge has to weigh the parents' rights and child's well-being versus the grandparents' rights and desires.

 Here's What You Need to Know

Grandparents' rights to custody

Grandparents' rights regarding custody and visitation vary greatly from state to state. While all states allow grandparents to apply for some type of visitation with their grandchild, not all states allow grandparents to apply for custody.

In a nutshell, grandparents do not automatically have custody rights to their grandchild, but they may have the right to petition the court for it, depending on the state and the circumstances. As the grandparent, you need to understand your state's statutes, as some are permissive while others are restrictive.

How grandparents can obtain custody

Whether you can get custody of your grandchild, even if your adult child doesn't permit it, depends on several factors, including where you live. Some states require one of the following situations before granting a grandparent custody:

  • Either one or both of the parents has passed away.
  • The parents are unfit, with issues such as alcohol or drug addiction, crime, mental illness, neglect, or abuse.
  • The parents are either divorced or are no longer an intact couple.
  • The parents—or one parent, if the other parent's whereabouts are unknown— agree to have the grandparents take custody.
  • During an investigation by child protective services, custody is given to the grandparents to keep the child safe.
  • The grandchild was already living with the grandparent when another situation occurs, such as a single parent going to prison.
  • The grandchild is old enough to tell a judge they want to live with their grandparents.
  • A court grants joint custody to a young mother and a grandparent until the mother is able to take care of the child herself.
  • Both parents pass away unexpectedly and the grandparents are guardians in a will.

If the court denies a grandparent custody, they might still get visitation rights, which, although easier to obtain, are also often denied. Custody could be denied for many reasons that have nothing to do with the above scenarios. For example, if the grandparents are unable to drive, they would have trouble taking the child to activities, to the doctor, or to play with friends. Because a judge will choose the most stable situation for the child, they will also want to keep the child in the same school, so the location of the grandparents' home could also be a deciding factor.

Grandparents taking their adult child to court

Most of the above scenarios require grandparents to file a child custody petition in court before obtaining custody. If you can show that you had been actively involved in the child's life until your adult child interfered, then a judge may allow your case to go to trial.

Getting grandparent custody is extremely difficult in any situation, but it's even more so when the child's family is intact. The parents have the right to raise their child as they see fit, and only in rare instances and if it's in the child's best interests does a court give custody to grandparents over the parents. In intact families, grandparents may have the right to custody only when the parents are unfit or when child protective services is conducting an investigation.

No matter what the situation, obtaining custody of a grandchild is difficult, particularly if younger family members or close friends of the parents are deemed more suitable as guardians. Additionally, the child may stay with their parents under certain conditions, such as the mother entering addiction rehabilitation. If you're serious about getting custody, retaining a reputable family attorney is essential because you'll have to prove that there's a special circumstance that makes it in your grandchild's best interest for you to have custody.

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Ronna L. DeLoe, Esq.

About the Author

Ronna L. DeLoe, Esq.

Ronna L. DeLoe is a freelance writer and a published author who has written hundreds of legal articles. She does family … Read more

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