How a Grandparent Gains Custody of a Child

The process for a grandparent to gain custody of a child is a matter of state law, and the specifics will vary slightly depending on the state.  But there are some common principles that underpin the process.  The first is the “best interest of the child standard” which is the standard that almost all courts use in determining matters of child custody and visitation.  The second is the Supreme Court decision in Troxel v. Granville which gave a strong presumption in favor of allowing the natural parents to make decisions about how children should interact with grandparents.

The best interest of the child standard emerged in the late Twentieth Century in place of the “tender years” doctrine.  When courts are forced with a decision about how a child should be cared for, the court will look to determine what is in the best interests of the child, not the best interests of the parents, grandparents, or others.  The principle applies when the state wants to remove children from abusive and neglectful situations, and also when the parents are getting divorced.

Nevertheless, many states also had provisions in the law that allowed grandparents a right to visitation with their grandchildren under certain circumstances.  In 2000, the Supreme Court held that many of these laws are unenforceable and unconstitutional because they conflict with the parents’ rights to make decisions about how to raise their children.  Although Troxel was about grandparent visitation, it has affected grandparent custody also.

What that background, there are several ways that a grandparent can legally assume custody for a grandchild, including temporary familial custody, guardianship, dependency, and adoption.

Temporary custody can be granted in cases where the parent does not object.  In many cases this is a simple process that allows a grandparent to temporarily exercise the parents’ while the natural parents are unable to do so.  These are often used if the parent or parents are going to be imprisoned, attending drug or alcohol treatment, or deploying with the military.  This is a consensual process where a court orders that the grandparent is permitted to make major decisions such as education and medical choices.  Although many of these functions could be performed without a court order, the temporary custody requires that schools, courts, hospitals, and others give the grandparent the same rights that a parent would have.

More permanent arrangements can be made through guardianship.  In most cases, guardianship is arranged with the consent of the parents.  The difference between temporary custody and guardianship is the length of time: most guardianship arrangements are indefinite and remain in force until the court dissolves the order.

If the parents are not willing to give voluntary custody, the grandparents can attempt a state dependency process.  This is an area where the help of a family law attorney is almost definitely a requirement.  In cases where a child is in a situation of abuse or neglect, the state can remove the child from the natural parents and place the child in the custody of somebody else.  It might be a foster parent, a group home for children, or another relative such as a grandparent.  The courts will almost always use the “best interest of the child” standard here, and the state will have to prove that the natural presumption that the natural parents are the best suited to care for the child is overcome by proof that the parents are unfit.

For a more permanent solution, grandparents can also consider adoption of the child.  As with dependency, parents who object will be given a chance to show that it is not in the best interests of the child for this to happen.  The difference between dependency and adoption is that adoption results in a permanent break of the parents’ rights with respect to the child.  The grandparents become the legal parents of the child, and will generally not lose custody unless a new procedure shows that they are unfit as well.

The law regarding grandparent custody varies from place to place, and a local family law attorney will be best suited to evaluate the specifics of any individual case.