There are many reasons grandparents can file for custody of grandchildren. Sometimes, a parent is unfit to raise a child and a grandparent seeks to meet that child’s needs. Other times, a parent tragically passes away or becomes incapacitated due to illness or injury and a grandparent takes up the mantle of raising that parent’s child. Most of the time, grandparent custody is granted only out of necessity, especially if a grandparent is filing for custody over the objections of a child’s parent.
Death of a Parent
The most straightforward reasons grandparents can file for custody of grandchild/grandchildren involve the death or incapacitation of a parent. Oftentimes, parents will name a grandparent as a child’s guardian in the event that both parents pass away. If one parent remains living, custody will likely go to the surviving parent. But if there is no other surviving parent, a grandparent may file for custody as a child’s next of kin.
Permission From Parents
Another straightforward, although rare, scenario involves grandparents filing for custody after parents have given them the right to do so. Parents can voluntarily give up their parental rights. If both parents give up their rights, one parent is dead and the other gives up their rights, or one parent gives up their rights and the other parent’s whereabouts are unknown (and generally unknowable), a grandparent can file for custody.
Temporary Custody Situations
Grandparents may volunteer to assume temporary custody if Child Protective Services is investigating a child’s homelife and has determined that it is not in the child’s best interests to remain in the home during the investigation. This scenario is not one of the reasons grandparents can file for custody of grandchildren on a long-term basis unless a court rules that a parent is unfit.
The U.S. Supreme Court has ruled that parents enjoy a fundamental right to direct the custody and care of their children under the 14th Amendment to the Constitution. This right often allows parents to keep their children away from grandparents, because parents generally have the right to dictate when their children may and may not associate with others. The Supreme Court has also ruled that the government can’t lawfully interfere with this fundamental right unless a child’s parent is proven to be “unfit” to raise them.
If a parent has been proven unfit, a grandparent may petition for custody of a child who is no longer in a position to be raised by their unfit parent (provided that no other fit parent is available to assume full custody). A “fitness hearing” is usually separate from a final hearing concerning whether a parent should be stripped of their rights permanently.
What Makes a Parent Unfit?
A grandparent can’t file for custody of a grandchild simply because they don’t like how the child is being raised. Each state employs a specific definition of what it means to be unfit to parent a child. Most of these definitions read much like Nevada’s, which insists that “any parent of a child who, by reason of the parent’s fault or habit or conduct toward the child or other persons, fails to provide such child with proper care, guidance, and support” is unfit to carry on these responsibilities.
This broad definition protects children against objective instances of serious neglect or abuse. Examples of conduct that can lead a court to determine that a parent is unfit include:
- Abandonment or desertion
- Repeated or extreme neglect
- Repeated or extreme physical and/or emotional abuse
- Sexual abuse
Additionally, convictions for some violent crimes, unmanageable mental illness, a history of unmanaged substance abuse, and other extreme circumstances may lead a court to classify a parent as unfit. If, as a result, they are stripped of their fundamental right to direct the custody and care of their child, a grandparent may file for custody to assume that right.
Ready to Learn More About How to Get Custody of a Grandchild?
If any of the reasons grandparents can file for custody of grandchildren apply to your family’s situation, you could benefit from legal guidance. To learn more, schedule a free case evaluation to discuss your custody questions with an attorney.