A court may grant custody to a grandparent if it serves the grandchild’s best interests, provided:
- The grandparent’s relationship with the child began through parental consent or a court order.
- The grandparent has taken on responsibility for the child or is prepared to do so.
- One of the following situations applies:
- The child has already been found to be dependent (in juvenile court).
- The child is significantly at risk due to issues such as parental incapacity, neglect, or substance abuse.
- The grandparent has served in a parental role for at least 12 months.
Presumptions in Custody Cases
- Parent vs. Parent: No presumption exists in favor of either parent.
- Parent vs. Third Party: There is a presumption that custody should go to the parent unless clear and convincing evidence indicates otherwise.
- Third Party vs. Third Party: Again, no presumption exists in favor of one third party over the other.
Visitation Rights
- The term “visitation” typically applies to grandparents or other third parties. When referring to parents, the terminology used is usually “primary custody” and “partial custody.”
- Generally, the non-custodial parent is entitled to reasonable partial custody unless it negatively affects the child’s mental or physical well-being.
- Denying partial custody is rare and usually happens only if there is a history of physical or sexual abuse.
- Courts can set limits on timing, location, and conditions of visits.
- Courts often permit a parent to move out of state if there is a legitimate benefit to the child or parent (and not simply to evade existing visitation arrangements).
Third-Party Visitation
- Grandparents and stepparents may be granted visitation rights, especially if they have a longstanding bond with the child.
- The best-interest-of-the-child standard guides these decisions.
- A parent’s romantic or sexual relationships usually do not justify restricting visitation.
- Visitation cannot be denied solely because a parent or child is HIV-positive or has AIDS.
- If a parent interferes with visitation or refuses to comply, the court may address this through contempt proceedings or by modifying custody.
Grandparents’ Visitation
- Grandparents may seek visitation if a parent has passed away, if the parents’ marriage has ended, or if the grandchild has lived with the grandparents for at least one year.
- Grandparents must show that visitation is in the child’s best interests and does not undermine the parent-child relationship.
- Courts give “special weight” to a parent’s decision about whether allowing a third party to visit is in the child’s best interests.
Enforcing Visitation Orders
- A civil court may issue an order threatening fines or imprisonment for those who fail to follow visitation directives.
- Violators can be ordered to pay attorneys’ fees and court costs.
- A custody or visitation decree from another state is afforded full faith and credit if properly registered, as per the Federal Parental Kidnapping Prevention Act.
Contempt for Violating Custody and Visitation Orders
Anyone who willfully disobeys a custody order can be found in contempt. Potential penalties include:
- Up to six months in jail
- Fines up to $500
- Probation for up to six months
- Suspension of a driver’s license
- Responsibility for attorneys’ fees and legal expenses
A commitment order must specify the conditions for an individual’s release if jail time is imposed.
Considering the Child’s Preference
The child’s wishes are one factor in deciding custody. How much weight the court gives this preference depends partly on the child’s age and maturity.
Appointment of a Guardian ad Litem
In highly contested custody matters, the court may appoint an attorney for the child. This attorney’s duty is to represent the child’s interests, and typically, the parents share the cost of these legal fees.
About Divorce Lawyer R. Badet
Divorce Lawyer R. Badet is well-versed in guiding clients through each phase of the divorce process, from straightforward cases to more complex legal battles. His practice covers divorces, spousal support, child support, and child custody. With a strong background in both Family Law and Criminal Law, he focuses on achieving the best possible outcomes for his clients.
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