In general, a parent has a fundamental and constitutional right to raise and nurture their child. We often get questions from grandparents who wish to obtain visitation or custody right of their grandchild or children and often do not fully understand what their rights are. Grandparents do have the right to claim custody and visitation rights even over the objections of the biological parents, but the process is complex.
Grandparent rights are considered to be derivative of parental rights, which means that if the child is adopted into another family or the biological parents have their rights terminated—the grandparents lose their right to visitation and custody. In many situations, the grandparents may have a right to institute an action for visitation rights if a substantial relationship exists between them and the child.
If a grandparent wishes to seek visitation rights, they must intervene on a custody action or make the argument that the family is no longer intact. If the grandparents do not file their motion to intervene before the custody dispute is resolved, they will no longer have the grounds to stake their claim. This can be a highly time-sensitive situation.
If a grandparent wishes to seek custody of their grandchild, the process is quite different. First, the grandparent must show that both parents are unfit or have acted inconsistently with their constitutionally-protected parental status. Evidence may be required to show that the child has been abused, neglected, mistreated or that there was misconduct on the part of the parents.
Misconduct could be a variety of things such as giving up time with their child, voluntarily giving up custody of the child for an extended period of time, among a multitude of other possible fact situations.
If the grandparents are able to make the argument that the parents are both unfit, then the court will then apply a “best interests of the child” analysis. The best interests of the child are determined by looking at a variety of factors. Examples of some of the factors the court will consider include the safety of the child, parents ability to provide for the child, whether or not domestic violence has occurred in the home, and the overall home life of the child. This is by no means an exhaustive list.
The legal process for grandparents seeking visitation or custody rights is complex and not easily navigated. The pleadings in these matters require very specific details and need to be filed in a timely manner. The lawyers here at King Law Offices are eager to help grandparents through this difficult legal process. If you have questions regarding potential grandparent visitation or custody rights please call our office.