The Law and Grandparents


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Nov 24, 2014

There are more than 70 million grandparents in the United States. According to the US Census Bureau’s American Community Survey, more than half of these people believe they would do a better job raising their grandchildren than they did raising their own children. Thirteen percent of these grandparents are raising their grandchildren and serve as the primary caregiver for their children’s children.

In order for grandparents to receive custody and even visitation time with their grandchildren, certain conditions must apply. These conditions vary from state to state, but in general, the best interest of the child is the most important factor.

If custody of a child is an issue, courts typically attempt to award it to the mother. If the mother is unavailable or unfit, the next person to be awarded custody is the father. If the father is not an option, grandparents or other blood relations are typically given next priority. In cases where grandparents feel the child’s parents are unfit, the burden of proof is on them to establish the parent is unfit and in most situations, it is extremely difficult to do so. If neglect is found, the court may remove a child from the custody of the parents. Grandparents would then have to qualify for custody. Again the best interest of the child is the Court’s standard. In many instances the Court may appoint a Law Guardian, a legal representative appointed to represent the child’s interests in the proceeding. The Law Guardian will interview and visit all parties home and prepare a report for the Court.

Receiving visitation as a grandparent is easier than receiving custody. Courts take various factors into consideration when determining whether or not to grant grandparents legal visitation, including:

  • Needs of the child, including his or her physical and emotional health
  • Capability of the grandparents to meet the needs of the child
  • Distance between the child’s primary residence and that of the grandparent(s)
  • Wishes of the parent(s)
  • Wishes of the child, if the child is capable of making decisions on his or her own
  • Strength of the relationship between the grandparent(s) and grandchild
  • Length of the relationship between the grandparent(s) and grandchild
  • Evidence of abuse or neglect
  • Ability of the grandparent(s) to provide love, affection, and contact with the child

Ideally, parents are able to work out an arrangement that includes time with grandparents interested in being a part of a child’s life, even after the child’s parents have separated or divorced. However, this is not always the case, especially if the parent’s relationship does not end amicably or the relationship with in-laws was strained when the couple was together. This can be especially problematic in non-traditional families where grandparents are not accepting of life choices, but still wish to play a role in a grandchild’s life.

If you are a grandparent who wants to continue a relationship with a grandchild once his or her parents separate or you are the parent of a child whose grandparents are threatening legal action, it is important to speak with a family attorney. He or she can explain to you the rights of grandparents and determine what action to take to best protect your family.

If you have a legal situation concerning your family and are in need of help, call 631-277-8844 today for a no obligation initial consultation and personal service.