When it comes to who will receive child custody, grandparents are increasingly part of the equation by stepping in to raise their grandchildren. The best interests of the child or children is always at the center of any custody decision, and it is assumed that biological parents are the most desirable primary choices.
Types of Custody
State laws recognize different types of custody which are to be considered for minor children:
- Legal custody comes with the right to make major life decisions for the child such as medical care, religion, and educational decisions.
- Physical custody defines who the primary care giver is, who the child lives with and spends the most time with.
- Joint custody is when two people share legal custody or physical custody or both legal and physical custody of the child.
- Sole custody is when one person is granted full legal or physical custody of the child or is granted both legal and physical custody of the child. In this case, the other parent would normally be granted visitation with the child.
Grandparents
There are many reasons why grandparents might seek legal and/or physical custody of their grandchildren and they all generally center around both of the child's parents being unavailable or unfit to raise the child. These reasons can include:
- Death of both parents, or the death of the parent who was previously awarded sole physical and legal custody of the child. If there is a remaining parent, the court will first assess that parent's suitability to provide a stable and loving home for the child, as that is always the court's preference if that is determined to be in the best interests of the child.
- When there has been documented child abuse or neglect by either or both of the biological parents.
- The parents are unfit because of substance abuse, alcohol dependency or mental illness.
- The parents who were caring for the children are incarcerated.
- The child is living in a home with documented domestic violence.
When deciding if grandparents should be given custody of a child, the court will evaluate the age of the children against the age of the grandparents, the existing relationship between the children and the grandparents, the health of the grandparents and their financial ability to support their grandchildren for many years to come.
If the grandparents have already been fulfilling the primary parenting role in the child's life for the previous year, either because of a previous agreement with the parents to do so or the courts had previously given guardianship to the grandparents, it may be easier for grandparents to be successful getting custody.
Get Legal Help
Family law matters are technical, complex and most of all delicate and extremely personal. The stakes are high, particularly when a child's life and upbringing are at stake. Seek out and hire an attorney who specializes in family law who can advise you of the laws in your state, and help you be able to do the right thing for your grandchildren.
