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Can Grandparents get Custody of a Grandchild?

Although parents always have the legal right to take care of their child and to determine what is best for their child, in certain cases, if the parents cannot take care of the needs of their child, a third party may step in instead. This third party may be a close relative, like an aunty or uncle, or grandparents who want to seek custody. In custody cases, courts balance the rights of the parents with the best interests of the child. The third party who is willing to take custody of the child needs to present a compelling case in order to be able to gain custody from court.

What if both parents are alive?

The court always takes decisions based on the best interests of the child. If one or both parents are alive, the court will prefer to place the child with one or both of the parents. However, if those parents are unable to take care of the child or are unwilling, then third parties may be able to obtain custody. Some of the common scenarios in such cases are:

  • When both parents are deemed unfit to take care of the child
  • When both parents decide to give custody to the grandparents
  • When there are incidents of neglect or abuse documented in the parents’ home
  • When there have been incidents of drug or alcohol abuse in the parent’s home
  • When one or both parents have a mental illness
  • When one parent is unfit to take care of the child and the other parent refuses to take the child

In all these cases, if there is another family member or close relative who is willing and able to take care of the child, then that person may be granted custody of the child. Grandparents will not get custody of the child easily in most cases, especially if they have not been acting as their grandchild’s parents before seeking custody. Some courts require the grandparents to care for the child for at least one year before they will be granted custody. Again, the court’s decision is based on the best interests of the child.

When one parent dies

If one of the custodial parent dies, then the custody will usually be handed over to the other custodial parent, even if that parent was not actively involved in the child’s life before. If that does not work out, then custody will be granted to a close blood relative. The court will determine who is the best individual to have custody of the child apart from the grandparents based on the following factors:

  • If the child, custodial parent, and grandchild were all living together in the same house, then the grandparents would receive custody
  • If the parents left a will naming the grandparents as guardians, then the grandparents would receive custody
  • If the child is happy and willing to live with the grandparents

Whenever custody is granted to the grandparents, courts would take factors like health, financial position, and age of the grandparents into consideration.

Since child custody laws vary from state to state, it is advised to get in touch with a child custody lawyer in your area to help you understand the process better.