Can Grandparents Get Child Custody?

Today, it is possible for grandparents to gain child custody of their grandchildren, with the CDC reporting that other than birth parents, kids most frequently live with their grandparents.

Winning legal custody as a grandparent is not necessarily an easy task. It can be a long journey through the complicated legal system of family law. Existing grandparent visitation laws stop short of guardianship and full custody. If you choose to pursue grandparent custody, then you have to pursue a third-party custody suit. Grandparents are not recognized as a separate entity under the law; instead, they’re considered aspiring parents in adoption law.

Laws vary depending on where you live, so you will want to seek legal counsel to help navigate the exact requirements for your state. Grandparents do not receive any more considerations or allowances than other family members, however, the U.S. Census Bureau did report in 2014 that 10% of grandparents in the U.S. live with their grandchildren.

If you are a grandparent interested in pursuing custody of your grandchild, this is what you need to know before the custody suit begins.

Reasons Grandparents Gain Custody

There is a difference between access and custody. Access means that as a grandparent, you have the ability to see your grandchildren on a regular basis. Custody is a more formal, long-term arrangement where the children live with their grandparents full-time, and it is the grandparents who make all important decisions for the kids, such as medical care and schooling.

There are many reasons grandparents can file for custody when the birth parents are still alive and do not give consent.

  • Neglect

This refers to a parent’s inability to provide the child with basic necessities, such as shelter, food, clothing, and medical care. It also pertains to supervision issues, which can include leaving the child alone for extended periods of time or exposing them to unsafe or inappropriate environments. Neglect can occur in cases involving mental illness, divorce/marital separation, or incarceration.

This can include evidence of red marks, bruising, lacerations, muscle sprains, broken bones, or other physical trauma on the child.

Instances of sexual abuse and trauma may include exploitation and trafficking, assault, rape, exposure and exhibitionism, showing or engaging in pornographic materials, and obscene communications of a sexual nature.

Forms of psychological abuse include name-calling, insults, threats of violence and harm, as well as withholding love and care.

  • Prenatal substance abuse

An estimated six million children live with a parent who’s struggling with substance abuse, and research shows that those children are more likely to experience physical, sexual, or emotional abuse. When it comes to children whose parents abuse substances before they’re born, only some states consider prenatal substance abuse a form of child abuse.

Any of these reasons could be enough to rescue a child from an unsafe home and gain emergency custody of your grandchildren, but it all must be done within the limits of the law. There are very specific criteria needed for child abuse and neglect charges to apply, and proof must be documented in a manner that is found acceptable to the court.

What Is Emergency Custody?

Emergency custody is different from regular and temporary custody because it is designed to bring immediate relief to a risky or harmful situation. An emergency court hearing is held strictly to discuss the pressing threat to the child’s safety, and all other matters will have to wait for the regular court date.

To obtain an emergency custody hearing, there must be a pressing urgency that cannot wait, and you must have irrefutable proof that the child is in danger. Child sex abuse and significant physical abuse could be reasons why a judge would be inclined to grant emergency custody.

The idea is to provide immediate help when a child can’t remain in the same place while a legal battle plays out in court.

Grandparent Custody Rights

There is a difference in regards to legal custody versus physical custody, so it’s important to understand your entitlements under grandparents’ rights. While a parent’s rights will always come first, grandparents have their own rights, too, and not all custody cases are contentious.

Grandparents’ custody rights apply to many different kinds of situations.

  • Deceased parents leave the child with no living legal guardian.
  • Unfit parents expose the child to harmful environments or events.
  • Parental consent is given for the grandparents to assume full custody.
  • Existing living arrangements, where the child has lived with grandparents for a year or more.

How to File a Custody Suit for Your Grandchildren

Laws vary by state, so it is always important to have your attorney review your case and advise accordingly. There may be some requirements that limit your eligibility for grandparent custody, such as your age, criminal record, or lack of spousal consent.

Your state’s child welfare agency will stipulate which forms you need to file in order to officially begin your case. You may also be required to undergo a background check and complete a home study.

You will need to attend your hearing in person with your attorney so the judge can ask you and the other involved parties the questions necessary for a decision. If the judge rules in your favor, you will be awarded a final Decree of Adoption.

Tips for Grandparents Seeking Child Custody

There are some things you can do to alleviate the challenges of a child custody case for yourself, the child and the entire family.

Consider the Long-Term Consequences

Raising a child can be expensive, so take the time to consider the financial demands this can place on you. Some grandparents might be living on a limited income, such as retirement or Social Security. This is something that a court will examine closely before making its ruling.

There may be medical impacts, too. Grandparents who are raising grandchildren are at a higher risk of depression, insomnia, hypertension, and even diabetes. These health conditions can be difficult when you are also adjusting to a new home life.

There may also be long-term divides within the family that result from an alienating custody battle. While the wellbeing of your grandchildren may be well worth it, it is a potential loss that you should consider.

Understand the Opposition

It’s important to remember that every child has two parents, and when you file for custody, you are filing against both of them. There may also be other parties that pursue custody. If this is the case, you will need to show that you are a better-abled provider for the child than the other individuals.

Know How to Get Involved

A custody lawsuit is not always the right answer. It is possible that your child could benefit from extra help, such as parenting classes or coaching. Some grandparents choose to help through financial support for struggling households that is delivered via child support and goes directly to the children’s needs.

Before you pursue custody, it’s important to first consider ways to keep the family united, especially for children who want to be with their parents. The best solution is usually the one that offers the least amount of disruption and trauma to the young children involved.

Strategically Contact the Authorities

When you are suing for full custody, you must show that you are a better fit for a child than the birth parents. You will need to gather proof to support your case. Don’t get so caught up in evidence-gathering that you are driven to extreme behaviors, like placing false emergency calls or making inaccurate assertions.

Instead, use the appropriate authorities to your advantage. If there are suspicions of drugs in the home or any kind of child abuse that may be occurring, Child Protective Services can perform a welfare check. As a federal agency, any evidence and testimony that they provide in court will be considered impartial and will go a long way in winning your custody case.

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