Petitions for Custody by Grandparents and Non-Parents
Grandparents do not have any inherent legal right to visitation with, or custody of, their grandchildren if the biological parents are capable of providing adequate care. However, grandparents and other relatives can petition for child custody under certain circumstances when it is in the child's best interests. If you have been cut off from your grandchildren, or if you are requesting custody to rescue a child from abuse or neglect an experienced family law attorney can assess your situation and represent you if you need to institute legal proceedings to protect the children.
It was a case in Washington State that eventually led to a landmark U.S. Supreme Court ruling on grandparents' rights. This federal case overturned a state statute that authorized courts to order visitation for grandparents. The U.S. Supreme Court reasoned that the state law was so invasive to the rights of custodial parents that it amounted to a violation of their constitutional rights.
Many grandparents, discouraged by this case, have wrongly concluded that they are powerless to help their grandchildren when the biological parents are unable to properly care for their children due to drugs, alcohol or emotional illness. These grandparents are often the only hope their grandkids have for stable custodians. The grandparents in these situations should not give up.
Visitation Under Another Person's Parenting Plan
Non-parental custody disputes can arise with either divorced or unmarried parents. Since grandparents will often have access to the grandchildren during their own son or daughter's residential time, sometimes they can at least get significant time with the grandkids during the visitation time of a biological parent. For that reason, grandparents often are more than willing to finance the custody or visitation case of their adult son or daughter.
Petitions for Non-parental Custody
Grandparents can also petition for custody on their own, when the biological parents are simply unable or unwilling to provide appropriate care for the children. In certain circumstances, a court may grant custody to grandparents, aunts, uncles, adult siblings or other interested parties.
To petition for non-parental custody, you must assert that both parents have abandoned the child or are unfit because of abuse, neglect, drug addiction, alcoholism, domestic violence or mental illness. Clement Law Center has successfully sued for custody on behalf of grandparents and others, often after they have already been sheltering and providing for the child for months or years. Obtaining formal court custody gives legal authority for the grandparents or relatives to not only provide care and shelter, but also to make important decisions for the children regarding education, health care and other official matters.
DISCLAIMER: This AVVO Legal Guide is provided for general educational purposes only. By using or participating in this site you agree and understand that there is no attorney client relationship between you and the attorney author. The law changes frequently, and varies from jurisdiction to jurisdiction. The information provided in this Legal Guide is general in nature and may not apply to the factual circumstances in your situation. The applicable law may be different in the State or States where the relevant facts occurred. For a definitive solution to your situation you should seek legal advice from an attorney who (1) is licensed to practice in the state which has jurisdiction; (2) has experience in the area of law you are asking about, and (3) has been retained as your attorney for representation or consultation. (C) Bruce Clement