Key Takeaways:
- Grandparents have limited custody rights compared to a child’s parents but greater rights than most people.
- Parents may deny grandparents time with children.
- Grandparents may obtain custody of their grandchildren in certain circumstances if it’s in the child’s best interests according to state law.
In 2021, approximately 6.7 million people in the U.S. lived with their grandchildren. Nearly a third of those 6.7 million grandparents had partial or total childcare responsibility. Yet grandparents have few custody rights to their grandchildren.
In this review of grandparent custody rights, we explore grandparents’ custody and visitation rights. We next address several questions: How do courts decide custody and visitation in ordinary circumstances? When can a grandparent get custody of a grandchild? Finally, how does a grandparent get custody?
How do courts usually decide custody and visitation?
Family law is the domain of state government. As a result, custody and visitation laws vary from state to state. Yet, the core aspects of custody and visitation rest on the same principles: the child’s best interests and parental rights.
Best interests of the child
At the core of nationwide child custody laws sits one legal standard: the best interests of the child. The following factors typically impact a child’s best interests:
- The parent-child relationship
- The value of maintaining a relationship between child, parent and other family and community members
- The relationship between the child and other family members, especially siblings, other household members and caregivers
- The child’s physical, mental and emotional needs
- The parent’s ability to provide for those needs
- The parent’s physical and mental health
- The presence of substance abuse or domestic violence
- The child’s wishes, if they’re old enough to make reasoned decisions
Generally, states prefer to keep a child’s life as stable as possible.
Pro Tip:
Although many states spell out what factors judges should consider in determining custody in their legal codes, others don’t. States without statutes identifying factors often rely on case law—written legal opinions deciding case outcomes. Judges frequently look to other states for guidance in writing legal opinions, so many factors are the same or similar, even in states without relevant statutes.
Parental rights and responsibilities
Every state requires parents to provide for their children while they’re minors. In most states, this obligation continues until the child turns 18 or, if still enrolled in school, until the child graduates from high school.
Parents also have the fundamental right to raise their children based on their beliefs and values. Phrased differently, parents have the right to direct the child’s religious, educational and moral upbringing.
Each state also has processes for terminating a parent’s parental rights. The termination process typically balances the desirability of a quick decision, enabling the child to have stability, with the parent’s fundamental rights.
Grandparent custody rights
No states guarantee grandparent custody rights. However, most states offer a way for grandparents to get visitation rights, meaning time with the child based on a court order.
There is a constitutional presumption that fit parent acts in the best interest of their child. For this reason, courts give extra weight to a parent’s decision to deny visitation to grandparents. To obtain custody or visitation, grandparents must demonstrate that the parent’s decision is not in the child’s best interest. Some states limit grandparents’ rights even further, permitting grandparents to seek custody or visitation only in specific limited situations.
Situations where grandparents can often seek visitation include:
- One or both of the child’s parents are dead
- One or both of the child’s parents have unreasonably denied visitation to the grandparent, contrary to the child’s best interests
- One or both parents lose parental rights
- The child was born out of wedlock
- The parents divorce or separate
Usually, if someone adopts the child, it terminates the grandparent’s ability to seek visitation rights. However, if the child’s stepparent adopts them, those rights may continue.
Notably, parents may deny grandparent visitation in most ordinary circumstances. If both of a child’s parents are present, grandparents typically have little or no rights to custody or visitation.
Whether a parent unreasonably denies visitation depends on the child’s best interests. Essentially, denial of visitation is unreasonable if it has a notable negative effect on the child, such as depriving them of contact with a grandparent who has previously been a significant caregiver.
When can a grandparent get custody of a grandchild?
Grandparents may get custody of their grandchildren if the parent is unfit to care for the children and it is in the child’s best interests for the grandparents to have custody. A parent who’s unable or unwilling to care for the child may agree to let the grandparent have custody, or they may lose their custody rights—or even their parental rights.
Pro Tip:
The core of child custody law truly is the child’s best interests. In any legal proceeding involving child custody, focus on why your request is better for the child, highlighting factors relevant to your life.
Parental consent
Different states provide different processes for parents to consent to allow grandparents to take temporary or permanent custody. Typically, a parent’s grant of official custody to someone else must follow specific procedures established by their state.
Even if the parent signs documents surrendering custody, their rights may still take precedence over the grandparent if push comes to shove. So ensuring any agreements are legally sound is essential.
Pro Tip:
Even if a parent loses custody, their obligation to support their child typically continues until and unless they lose their parental rights. In other words, if you have custody of your grandchild and one or both of their parents have parental rights, they may owe you child support.
Circumstantial loss of custody
Parents may lose custody temporarily for various reasons. Depending on the circumstances, this loss of custodial rights may become permanent—if it’s in the child’s best interests.
Circumstances that may temporarily or permanently affect a parent’s custodial rights may include a parent:
- Being deployed elsewhere through the U.S. armed forces
- Being arrested and confined in jail or prison, especially long-term confinement following a conviction (guilty verdict) or guilty plea
- Needing in-patient medical treatment
- Participating in in-patient rehabilitative care
- Being targeted by immigration enforcement and deported
Many states have specific provisions providing for temporary custody changes while a parent is deployed and protections when the parent returns.
If the parent is unavailable because they need health treatment or because they’re in jail, the question of long-term custody depends on:
- The custody rights and status of the child’s other parent
- Why the parent is absent (e.g., the parent’s specific diagnosis, the specific crime or crimes they’re accused of committing)
- How long the parent is expected to be absent
- How the parent’s absence has affected and will continue to affect the child
Conviction of some crimes, particularly those involving child abuse or domestic violence, may strengthen grandparents’ rights when the parent is in jail and afterward.
Removal of a child from their parent’s care through state intervention
States prefer to keep families together and avoid removing children from their homes. Yet the state may remove a child from a parent’s custody if its child protective services (CPS) agency concludes that removal is in the child’s best interests. When removal is necessary, states usually try to place the child with a relative, while CPS works with the parents to achieve parent-child reunification.
CPS frequently identifies grandparents as the first option to place a child that has been removed from their parent’s custody. What happens next typically depends on:
- Why CPS intervened (the severity of the parental conduct that led to intervention)
- How cooperative the parents are
- How successful the parents are at completing CPS’s reunification plan (if reunification is offered)
- How well the grandparents provide for their grandchildren’s needs
Once a CPS case begins, there are three possible outcomes: loss of parental rights, permanent loss of custody, or reunification.
Loss of parental rights
If CPS’s reunification efforts are unsuccessful or reunification isn’t in the child’s best interests, the state may initiate termination of parental rights proceedings. Alternatively, a parent may willingly surrender their rights—but, again, only if that’s in the child’s best interests. If it is in the child’s best interests, the court may also have the option to grant permanent custody and guardianship to a third party, such as a grandparent, without terminating the parent’s rights.
Some states require that CPS notify grandparents, siblings and aunts or uncles that termination of parental rights proceedings have begun. If the state terminates the parent’s rights, it generally tries to find the child a permanent placement as soon as possible.
Usually, grandparents get an opportunity to take custody of and responsibility for the child during or shortly after this process. This opportunity typically comes before others have the chance.
Pro Tip:
Pay close attention to any deadlines in your state to make your desire for custody known if your grandchild’s parent is involved in a termination case. Missing deadlines may make it significantly more difficult to get custody.
How does a grandparent get custody of a grandchild?
Grandparents often obtain custody by getting involved in a parent’s legal case or CPS proceeding. Usually, that means working with CPS or hiring an attorney to help you intervene in the parents’ lawsuit.
Otherwise, grandparents may have to initiate a court proceeding. Those proceedings vary from state to state, but one option—filing for emergency custody based on immediate danger to the child—is available in every state but Massachusetts (which is in the process of adopting it as of October 2024).
Per the Child Custody Jurisdiction and Enforcement Act, a grandparent may request temporary custody of a child in an emergency if:
- The child has been abandoned
- The child is at risk of mistreatment or abuse
- A sibling or parent is at risk of mistreatment or abuse
If you’re seeking long-term custody, you may need to file a lawsuit tailored to the unique legal provisions in your state. For example, in Texas, you might file a Suit Affecting the Parent-Child Relationship (SAPCR).
Grandparents, custody and the child’s best interests
In sum, the relevant considerations about when a grandparent can get custody of a grandchild include the following principles:
- Custody depends on the child’s best interests.
- There is a general presumption that a fit parent’s decision concerning grandparent visitation is in the child’s best interests.
- Grandparents don’t generally have custody rights but may get visitation rights in certain circumstances if they can prove it is in the child’s best interests.
- If the child’s parent isn’t willing or able to care for the child, grandparents typically get custody preference.
- Ultimately, whether grandparents who request custody get it depends on—naturally—the child’s best interests.
Simply put, grandparents may get custody if the parents are unfit to care for the child and the grandparent having custody is in the child’s best interests.
Proving that grandparent custody is in the child’s best interests and following the appropriate procedures to request that custody often depends on the specific laws in your state. Because grandparents are granted little in the way of custodial rights to their grandchildren and the laws may be confusing and variable, it may help to hire a lawyer to guide you through the process. Your lawyer can identify the relevant laws, explain your rights and, if possible, help you gain custody and keep your grandkids safe.
Sources
https://www.census.gov/library/stories/2024/03/grandparents-living-with-grandchildren.html; https://www.mncourts.gov/mncourtsgov/media/scao_library/CJI/Determining-the-Best-Interests.pdf; https://casetext.com/case/troxel-v-granville; https://www.ncsl.org/military-and-veterans-affairs/military-parent-custody-and-visitation; https://www.uniformlaws.org/committees/community-home?CommunityKey=4cc1b0be-d6c5-4bc2-b157-16b0baf2c56d; https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=FAM§ionNum=3424; https://texaslawhelp.org/article/sapcr-custody-cases
