How to Get Custody of Grandchildren

Written by J. Hirby and Fact Checked by The Law Dictionary Staff  

Grandchildren are a treasure, and often those treasures must be safely guarded. Parents may become ill or otherwise incapacitated, requiring the grandparents to step in and takeover the role of primary caregiver. Some grandparents may find that those who are legally responsible for a child's well-being is not equipped to handle the responsibility. Whatever the case may be, grandparents who wish to gain custody of their grandchildren have a true legal battle ahead of them.

Grandparents Rights

Grandparents do have specific rights when it comes to their grandchildren, but those rights vary from state to state. In almost all cases, grandparents can battle over visitation with grandchildren if that is an issue. Gaining custody is much more difficult.

Conditions for Custody

In order for grandparents to be awarded custody of their grandchildren, the case must be made in court that residing with the grandparents is in the best interest of the children. Grandparents must prove that the custodial parent or parents are unfit and that the grandparents are more capable to meet the children's needs. The court will weigh the wishes of the parents and children, if those children are old enough to speak to the court. Any evidence of abuse, neglect, or addiction is taken into consideration as well. Finally, the court will look at any special needs the children have and whether or not the grandparents are able to provide care that the parents cannot. In most cases, the court decrees that parents should retain custody of children. Proving that parents are unfit is a lengthy road.

The Legal Process

Gaining permanent custody of a child varies from state to state. In most cases, the first step is filing a petition for custody. Grandparents must complete a petition for custody, which must be signed before a notary public. The petition is filed and a court date is scheduled. That court date may be scheduled the same day, but it is not uncommon to wait weeks or even months.

At this point, it is wise for grandparents to hire legal counsel. The parents will have lawyers; if they cannot afford one, the court will appoint one. The child will likely have his own court appointed court or law guardian as well. Once the custody hearing takes place, the judge will weigh all of the evidence regarding the best place for the child. If the decision is made to award custody, a court order will be mailed to the grandparents. Though it may seem simple, if the parents fight the custody battle, the hearing itself can take years.

Relinquishing Parental Rights

If a child's parent decides to relinquish rights, the ordeal of gaining custody is not over but it is simplified. Grandparents must continue with the court process in order to prove that they are the best guardians for the child, but they will not face the possibility of fighting with parents over custody.

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