A court may grant custody to a grandparent if it is in the best interest of the child, under the following conditions:
- The grandparent initiated the relationship with the child either with a parent’s consent or by court order.
- The grandparent has assumed or is willing to assume responsibility for the child.
- One of these conditions must be met:
- The child is considered a dependent under juvenile delinquency laws.
- The child is at significant risk due to parental incapacity, neglect, or substance abuse.
- The grandparent has been acting in a parental role for at least 12 months.
Presumptions in Child Custody Cases:
- In a custody dispute between two parents, there is no presumption in favor of either parent.
- In a custody dispute between a parent and a third party, there is a presumption that the parent will be awarded custody. This presumption can be challenged with clear and convincing evidence.
- In a custody dispute between two third parties, there is no presumption.
Visitation Rights:
- The term “visitation” typically applies to grandparents and third parties, while “primary custody” and “partial custody” are used when referring to parents.
- Generally, the non-custodial parent is entitled to reasonable partial custody, unless it negatively impacts the child’s physical or mental health.
- Denial of partial custody is rare and usually occurs only in cases of abuse.
- Courts can set conditions on the time, place, and circumstances of visits, and typically permit relocation out of state if it benefits the child or parent, rather than being a way to avoid visitation arrangements.
Third-Party Visitation:
- Courts may grant visitation to grandparents or stepparents, especially if a strong, long-standing relationship exists.
- The decision is based on the best interest of the child.
- A parent’s cohabitation or sexual conduct is generally not a reason to restrict visitation.
- HIV or AIDS status cannot be used as a basis for denying visitation.
- If visitation is violated or interfered with, contempt proceedings or custody changes may be pursued.
Grandparents’ Visitation:
- Grandparents may request visitation if a parent is deceased, if the marriage has ended, or if the child has lived with them for at least a year.
- The grandparent must prove that visitation is in the best interest of the child and does not interfere with the parent-child relationship.
- The court will give special weight to the parent’s opinion on whether visitation is in the child’s best interest.
Enforcement of Visitation Orders:
- A civil court order can be issued, with fines or jail time for non-compliance.
- Parties who violate visitation orders may also be required to pay attorney fees and court costs.
- Custody and visitation orders from other states are enforceable if they are registered in the state where 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 disobeys a custody order can be held in contempt.
- Punishments for contempt may include:
- Up to 6 months in jail
- Fines up to $500
- Probation for up to 6 months
- Suspension of the driver’s license
- Payment of attorney’s fees and costs
- An individual jailed for contempt will be told what conditions must be met to be released.
Child’s Preference: The child’s preference is one of many factors considered in custody decisions. The weight given to the child’s preference depends on their age and maturity.
Appointment of Guardian ad Litem: In contentious cases, a court may appoint an attorney for the child, whose role is to represent the child’s interests. The parents usually cover the attorney’s fees.
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