Grandparents Rights in Child Custody Cases

If it is determined to be in the best interests of the grandchild, the court may grant custody to a grandparent who:

  • (1) Began the relationship with the child with the consent of a parent or by court order;
  • (2) Has assumed or is willing to assume responsibility for the child; and
  • (3) One of the following conditions has been met:
    • The child has been determined to be a dependent child under the statutes relating to juvenile delinquency;
    • The child is substantially at risk due to parental incapacity, neglect, drug, or alcohol abuse; or
    • The grandparent has taken on the role of parent for at least 12 months.

Presumptions in child custody cases:

  • If you have a custody battle between two parents, then there is no presumption;
  • If you have a custody battle between a parent and a third party, then there is a presumption that the parent will gets custody.

                  This presumption can be overcome by clear and convincing evidence; and

  • If you have a custody battle between two third parties, then there is no presumption.

Visitation Rights:

The term visitation will probably be used to refer to grandparents and third parties. However, between the two parents the therm is going to be primary custody and partial custody. 

  • Generally, the non-custodial parent is allowed reasonable partial custody with the minor child, unless it has a negative impact on the child’s mental or physical health.
    • Denial of partial custody is highly unusual and typically only happens in physical or sexual abuse cases.
    • Courts can limit the time, place, and circumstances of visits, and
    • Courts usually allow parties to move out of state if it is genuinely for the child’s or parent’s benefit (and not an attempt to avoid visitation arrangements).

Third Parties visitation:

  • The court maygive visitation to grandparents and stepparents, especially where there have been long-standing relationships.
    • The best interest of the child standard usually governs these determinations.
    • A parent’s cohabitation or other sexual conduct is usually not a basis for restricting visitation.
    • HIV or AIDS cannot be a basis for denying visitation, and
    • Interference or noncompliance with visitation may be remedied by contempt proceedings or a change of custody.

Grandparents Visitation:

  • Grandparents may seek visitation when a parent is deceased, the marriage is dissolved, or the child has resided with them for at least one year.
    • Grandparents must demonstrate the best interests of the child plus noninterference with the parent and child relationship, and
    • A court must give “special weight” to a parent’s determination as to whether a third party’s visitation is in the best interests of the child.

Enforcement of Visitation Orders:

  • (1) A civil court order threatening fines or jail time can be issued for non-compliance.
    • (2) Parties that violate such orders may also have to pay attorneys’ fees and court costs, and
    • (3) Custody and visitation orders from another state will receive full faith and credit if the other state’s decree has been registered in the state in which enforcement is sought (as required by the Federal Parental Kidnapping Prevention Act).

Contempt for violation of Child Custody and Visitation Orders:

A party who willfully fails to comply with any custody order may be held in contempt. 

Punishment for contempt may include any of the following:

  • (1) Imprisonment for up to 6 months;
  • (2) A fine of up to $500;
  • (3) Probation for up to 6 months;
  • (4) Suspension of a driver’s license; or
  • (5) Attorney’s fees and costs.

An order committing an individual to jail must specify the conditions which, when fulfilled, will result in the individual’s release from jail.

Child’s Preference:

The child’s preference is just one factor in a custody determination. The amount of weight given to the child’s preference will depend in part on the child’s age and maturity.

Appointment of Guardian ad Litem:

In highly contested cases, the court may appoint an attorney for the child.  The attorney’s role is to advocate for the child’s preference. The attorneys’ fees are usually paid by the parents.

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