Can grandparents be awarded grandparent custody of grandchildren?

Grandparent custody of grandchildren may be awarded in some situations where the child is already living with grandparents or if there is a legal reason to deny the child's parents the fundamental right to care. Grandparents can be awarded physical custody of grandchildren when it would be in the best interest of the child as well. Learn more below.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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Grandparent custody of a grandchild or grandchildren may be awarded under certain circumstances when the child’s wellbeing is in conflict with parental rights. However, there must be a compelling reason for grandparents to be awarded custody if either parent of the children are alive and capable of or interested in parenting the children.

How Can Grandparents Apply for Custody of Grandchildren?

If you’re thinking about fighting for custody of your grandchildren or even visitation rights, always talk to a family law attorney. Let them evaluate your case and see what your options are and the likelihood of success. Keep in mind, if you don’t get custody, it could create long-term complications in your ability to see your grandchildren. So be sure you have a good reason.

There is a strong presumption in favor of a parent’s right to be a parent, which means that grandparents will have a strong burden of proof to meet if the parents are living. Generally, this means showing that the child is in potential or actual danger of suffering some harm from being with the parents.

For example, if there’s child abuse or neglect or if there’s substance, the grandparents may be able to show the court that the parent is unfit and that custody should be moved to the grandparents. An example might include a 5 year old child who is not talking, wears diapers that don’t get changed regularly, and does not meet kindergarten requirements despite not having any diagnosable learning disabilities.

In the event that one parent of the child passes away, custody of the child will normally be awarded to the other parent, even if that parent did not have prior custody. AN exception would be when the surviving parent doesn’t want custody or is not capable of providing a home for the child. Even if the other parent does not know the child well or was not involved with the child, if there was no actual abandonment, the court is still likely to grant a child custody petition to a fit parent. If the child lived with the grandparents and the deceased parent prior to the parent’s death, this would be a factor in favor of the grandparents who were providing care to the child all along, but because it is a fundamental right of a parent to custody of their children, it is still not sure that grandparent custody would be awarded.

Grandparents who are able to show solid evidence of a history of violence and danger of abuse or severe neglect against the child have a chance. While some courts are more likely to remove children from certain types of parents (not necessarily based on qualifications), there’s a strong movement towards maintaining the parent-child relationship to prevent unnecessary trauma.

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Can Grandparents Get Custody When Both Parents Are Deceased?

In the event that both parents are deceased or that the sole living parent doesn’t want the child or children, child custody is normally awarded to a close blood relative. This doesn’t mean that grandparents will necessary get custody, but it’s possible. The courts have to look at which home is best suited for the child if there are no available parents. Age and health could be factors used by an experienced family rights attorney. In some cases, a sibling or extended family member may be awarded child custody. If there is a dispute over who will get primary custody of a child with deceased parents, the grandparents will have to prove to the court that it is in the child’s best interest to live with them.

If the parents designated guardianship of the children in their will or trust, the courts may default to that choice even if they’re not blood family members.

The exception would again be if there was a compelling reason to not do so in the form of possible harm or danger to the child.

Should You Get a Guardian Ad Litem for Your Grandchildren?

If you’re concerned about the safety and wellbeing of your grandchildren, suing for the courts to award custody is one option. In the course of the suit, the judge may appoint a guardian ad litem to look out for the interests of the child when the adults can’t seem to agree. If you feel the children are in danger, you can also request this.

A guardian ad litem represents the children, whatever their interests may be. So they can order psychological evaluations, fight for visitation, and even take the child out of the current home. A judge has to sign off on things they recommend, but many of these child lawyers hold great sway with the courts. So even if you’re in the midst of a difficult custody matter, it’s in your interest to be professional with the guardian ad litem.

Grandparents who wish to seek grandparent custody rights of grandchildren should understand that this may be a complex process. If you are a grandparent, you will need an experienced child custody attorney to put forth a strong argument for why you should be granted permanent custody of your grandchildren. Even for temporary custody, you could be fighting an uphill battle.

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