Grandparents' Rights | Child Custody and Visitation

You love your grandchildren and enjoy spending time with them. But sometimes circumstances beyond your control get in the way.

Maybe their parents don't allow you to have any contact with them. Or their parents have divorced and your son or daughter didn't get custody. Then, there are situations where the parents are unfit to care for the child and you must step in.

Before starting a case, it's important to know whether grandparents have a legal right to petition for custody and visitation in your state. Even if that right doesn't exist in your location, the court may let you petition if certain conditions exist.

Grandparent custody and visitation cases are often more complex than cases between parents. If you're unable to reach an agreement with your grandchild's parents, speak with a lawyer about your options. The last thing you want to do is go to court for custody or visitation rights, but it may be what's best for your grandchildren.

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Grandparents and child visitation

Grandparents may have to fight for visitation time with their grandchild for many reasons, including:

  • Their son or or daughter gets limited parenting time with the child.
  • Their son or daughter is an absent parent (due to incarceration, abandonment, etc.).
  • Their son or daughter's parental rights have been severed.

As of now, no state guarantees grandparents the right to visitation with their grandchildren. The argument is that such laws would impact the rights of the parents.

Some states do allow grandparents to file for visitation rights under certain circumstances. For example:

  • In Alaska, grandparents may petition for visitation if they have established or attempted to establish a relationship with the child and it is in that child's best interests (AS 25.20.065).
  • In Connecticut, a grandparent must show in their petition that they have acted as a parent toward the child and that failing to grant visitation would harm the child (GSC 815j § 46b-59).
  • In New Mexico and several other states, grandparents may petition the court for visitation rights in multiple situations, such as if the parents are divorced, a parent is dead, or the child has lived with the grandparent for a certain period of time (NMC § 40-9-2).

Refer to your state's family laws to see if grandparents are eligible to petition for visitation.

The best interest of the child is the main factor in whether the court awards visitation. The court will want also to see that granting visitation wouldn't interfere with the parent-child relationships and know why the parents won't let you have visits.

Get more time with your grandchild by helping your child

More parenting time for your son or daughter usually means more time for you to spend with your grandchild. Helping your child with their custody case could ensure you have access to your grandchild.

Taking notes about your time with the young child is one way to help. You can use the Custody X Change journal to document the child's behavior, note how the child interacts with their parent, upload photos of your outings, etc. Your son or daughter will need evidence to show that they are a good parent. This record could also help you prepare if you testify as a witness in court.

Once there's a custody order, you can discuss your visitation requests with your son or daughter. Put any agreement in writing, and turn it in to the court to secure the legal right to visitation. The parents could add time with grandparents to the visitation schedule.

Reasons grandparents can file for custody of a grandchild

The main priority of the courts in family law cases is to protect the well-being and best interests of the children. When children need care from someone other than their own parents, grandparents are a logical solution.

Whether a grandparent qualifies to petition for custody depends on the state. States that do allow it generally require that at least one of the following apply:

  • The child's parents are separated, divorced or unmarried and living apart.
  • The child's parents have died.
  • The child has been abused, neglected or abandoned.
  • The child has lived with the grandparent for an extended period (usually at least a year), and interfering would harm the child.

Some states recognize de facto parentage, which gives a non-parent the right to petition for visitation or custody as a parent would, even if none of the above applies. To get this distinction, the grandparent must have lived with the child for an extended period and acted as their primary caretaker.

This is relevant today in the United States, where 11 percent of grandparents live with their grandchildren, and five percent of those are their grandchildren's primary caregivers.

During a termination of parental rights case, the court may transfer custody of the child to a grandparent or another relative. Sometimes, parents voluntarily give custody to their child's grandparents.

It's difficult for a grandparent to get custody if it's against the wishes of one or both parents, unless there's solid proof neither parent is suitable.

Giving parental rights to grandparents

A parent cannot give parental rights to their child's grandparents. Adoption is the only way grandparents can gain parental rights. It is possible if a court terminates both parents' parental rights.

A parent can name a grandparent as the child's legal guardian temporarily or long-term. With guardianship, the grandparent can make decisions for the child (e.g., enroll them in school) and is in charge of the child's daily care and well-being. The child's parents keep their parental rights.

Grandparent alienation

Grandparent alienation is when a child is "programmed" by one or both parents to reject a grandparent. The child's resulting behavior is called grandparent alienation syndrome (GAS).

In this situation, one or both parents don't allow the grandparent to interact with the child. They tell lies about the grandparent and speak negatively about them in front of the child.

If grandchildren suddenly become distant, seem scared around their grandparents or criticize their grandparents using adult language, alienation might be occurring.

Before awarding a grandparent visitation or custody, the court considers whether they have an established relationship with the grandchild. If GAS is in play, you'll need to show that you made a significant effort to form a relationship. Provide proof of calls you placed, cards you sent, etc.

GAS usually affects older children, making visitation hard to enforce even if the court grants it.

There's very little research about grandparent alienation syndrome. Like parental alienation syndrome, it's not considered a diagnosable psychiatric condition.

Staying out of court

Try to work out an arrangement with your grandchild's parents before proceeding to court. A court case could damage your relationship with your own child. You might see your grandchild even less if you're unsuccessful in your bid for visitation or custody.

Few parents are willing to surrender their parental rights. However, if the alternative is the child living in foster care, parents may be willing to transfer custody to grandparents.

An alternative dispute resolution method could help you discuss matters productively, since a professional guides the conversation.

Preparing for court

When you're a grandparent fighting for visitation or full custody of your grandchildren, preparation is key. Custody X Change can help.

To set up the perfect custody and visitation schedule, click on the "calendar" tab. You can also enter the schedule you currently follow.

Above the calendar, you'll see your percentage of caretaking time. The printable report could prove you have been your grandchild's primary caregiver, boosting your case.

Clicking on the "parenting plan" tab allows you to design a parenting plan you can give the court to show you're prepared for a future with your grandchild.

You love your grandchildren, and they need you in their lives. Try Custody X Change, and see how it can help you spend more time with them.

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