Can grandparents be awarded grandparent custody of grandchildren?

Grandparent custody of grandchildren may be awarded in some situations where the child is already living with grandparents or if there is a legal reason to deny the child's parents the fundamental right to care. Grandparents can be awarded custody of grandchildren when it would be in the best interest of the child as well. Learn more below.

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Feb 4, 2021

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Grandparent custody of a grandchild or grandchildren may be awarded under certain circumstances when they can trump parental rights. However, there must be a compelling reason for grandparents to be awarded custody if either parent of the children are alive and capable of or interested in parenting the children.

How can you get grandparent custody of grandchildren?

Grandparent custody may be awarded in some situations where the grandchild living with grandparents would be in the best interest of the minor child and there is some reason to deny the child’s parents the fundamental right to the care, custody and control of their child. There is a strong presumption in favor of a parent’s right to be a parent, which means that grandparents will have a strong burden of proof to meet if they wish to obtain grandparent custody while the child has living parents.

Generally, this means showing that the child is in potential or actual danger of suffering some harm from being with the parents. For example, if a child is in an abusive home or if the child’s parent is addicted to drugs or alcohol, the grandparents may be able to show the court that the parent is unfit and that custody should be taken away and grandparent custody should be awarded. In such child custody lawsuits, the burden of proof will be placed on the grandparent to show the lack of fitness of the custodial parents. It will be up to the judge to make the decision about your grandchild’s best interests.

In the event that one parent of the child passes away, custody of the child will normally be awarded to the other parent, even if that parent did not have prior custody, unless that surviving parent doesn’t want custody or not capable of providing a home for the child. Even if the other parent does not know the child well or was not involved with the child, if there was no actual abandonment, the court is still likely to award child custody to that parent if the parent is fit and wants the child. If the child lived with the grandparents and the deceased parent prior to the parent’s death, this would be a factor in favor of the grandparents who were providing care to the child all along, but because it is a fundamental right of a parent to custody of their children, it is still not sure that grandparent custody would be awarded.

The best chances of grandparent custody being awarded by the court involve situations in which the grandparents are able to show that not only is it in the best interest of the child to live with the grandparents, but that there would be some harm to the child if the child were to be sent to live with the other parent. Grandparents who are able to show solid evidence of a history of violence and danger of abuse against the child or deceased parent, drug abuse, alcohol abuse, physical abuse, neglect, or mental illness of the surviving parent would have the best chance of being awarded grandparent custody of their grandchild in the courts.

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Can you get grandparent custody when both parents are deceased?

In the event that both parents are deceased or that the sole living parent doesn’t want the child or children, child custody is normally awarded to a close blood relative. This doesn’t mean that grandparent custody will necessarily be awarded, though. In some cases, a sibling or other blood relative may be awarded child custody. If there is a dispute over who will get primary custody of a child with deceased parents, the grandparents will have to prove to the court that it is in the child’s best interest to live with them.

To avoid such custody disputes, parents often make a will dictating who will receive guardianship of the children in the event of an untimely death. When a will is in place naming a guardian, courts will generally respect the parents’ custody wishes for the children, again unless there is a compelling reason to not do so in the form of possible harm or danger to the child.

Grandparents who wish to seek grandparent custody rights of grandchildren should understand that this may be a complex process. If you are a grandparent, you will need an experienced child custody attorney to put forth a strong argument for why you should be granted legal custody of your grandchild.

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