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 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 awarded to the grandparents instead. In such 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.
In the event that both parents are deceased or that the sole living parent doesn’t want the child, custody is normally awarded to a close blood relative. This doesn’t necessarily mean that the grandparents will get the child, though. In some cases, a sibling or other blood relative may be awarded custody. If there is a dispute over who will get 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, 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 custody of grandchildren should understand that this may be a complex process. If you are a grandparent, you will need to study this issue thoroughly and perhaps hire an attorney. My book No Greater Loss is a good starting point if you want a comprehensive look at grandparents rights.
