Grandparents’ Rights in Child Custody Cases

In certain circumstances, the court may award custody to a grandparent if it is deemed in the best interests of the child. To qualify, the grandparent must:

  1. Have initiated a relationship with the child with the consent of a parent or through a court order;
  2. Have taken on or be willing to take on responsibility for the child; and
  3. One of the following conditions must apply:
    • The child is considered a dependent under juvenile delinquency laws;
    • The child is at significant risk due to issues like parental incapacity, neglect, or substance abuse;
    • The grandparent has acted as a parent for at least 12 months.

Presumptions in Child Custody Cases:

  • In a custody dispute between two parents, there is no presumption favoring either parent.
  • In a custody dispute between a parent and a third party, the court generally presumes the parent should have custody, though this can be challenged with clear evidence.
  • In a custody dispute between two third parties, no presumption exists.

Visitation Rights:

  • The term “visitation” typically applies to third parties like grandparents. Parents typically have “primary” or “partial” custody.
  • Non-custodial parents are usually granted reasonable visitation, as long as it does not harm the child’s physical or mental well-being.
  • Denial of visitation is rare and typically only occurs in cases involving abuse.
  • The court may set specific limitations on the time, place, and conditions of visitation.
  • Courts may allow parties to move out of state for the child’s or parent’s benefit, provided it’s not an attempt to avoid visitation.

Third-Party Visitation:

  • The court may grant visitation rights to grandparents or stepparents, especially in long-standing relationships.
  • The best interests of the child is the primary factor in these decisions.
  • A parent’s living situation or sexual conduct is generally not a reason to restrict visitation.
  • HIV or AIDS cannot be used as grounds to deny visitation.
  • Noncompliance with visitation orders can lead to contempt proceedings or a change in custody.

Grandparents’ Visitation:

  • Grandparents can request visitation if a parent is deceased, the parents are divorced, or the child has lived with them for at least one year.
  • Grandparents must prove that visitation serves the child’s best interests without interfering with the parent-child relationship.
  • The court must give significant weight to the parent’s opinion regarding whether third-party visitation is in the child’s best interests.

Enforcement of Visitation Orders:

  • A court may issue civil orders imposing fines or jail time for non-compliance.
  • Parties violating these orders may also have to cover attorneys’ fees and court costs.
  • Custody and visitation orders from other states are enforceable as long as the decree has been registered in the enforcing state under the Federal Parental Kidnapping Prevention Act.

Contempt for Violating Child Custody and Visitation Orders:

  • A person who willfully fails to comply with a custody order may face contempt charges.
  • Penalties for contempt can include:
    1. Up to 6 months of imprisonment;
    2. A fine of up to $500;
    3. Up to 6 months of probation;
    4. Suspension of a driver’s license; or
    5. Payment of attorneys’ fees and court costs.

A contempt order must specify the conditions that need to be met for the individual’s release from jail.

Child’s Preference:

  • A child’s preference is only one factor in a custody decision. The weight given to the child’s preference depends on their age and maturity.

Appointment of Guardian ad Litem:

  • In contested cases, the court may appoint an attorney for the child. The attorney advocates for the child’s preference, and the parents typically pay the fees.

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