If it is in the best interest of the grandchild, the court may grant custody to a grandparent who:
- Established the relationship with the child with the parent’s consent or through a court order;
- Has taken or is willing to take responsibility for the child; and
- One of the following conditions has occurred:
- The child has been declared dependent under juvenile law;
- The child is at significant risk due to parental incapacity, neglect, or substance abuse;
- The grandparent has acted as a parent for at least 12 months.
Presumptions in Custody Cases:
- In custody disputes between two parents, no presumption exists.
- In cases between a parent and a third party, there is a presumption that the parent will have custody, though this can be challenged with clear and convincing evidence.
- There is no presumption when the dispute is between two third parties.
Visitation Rights: The term “visitation” typically applies to grandparents and third parties, while “primary custody” and “partial custody” are used for disputes between parents.
- The non-custodial parent is usually granted reasonable partial custody unless it negatively affects the child’s well-being.
- Denial of partial custody is rare, typically occurring only in cases of abuse.
- Courts can set restrictions on the time, place, and conditions of visits.
- Relocation out of state may be allowed if it benefits the child or parent, rather than as a means to avoid visitation.
Third-Party Visitation: Courts may allow visitation for grandparents or stepparents, particularly if there is a longstanding relationship. Decisions are based on the child’s best interests. A parent’s cohabitation or sexual behavior is not generally a valid reason to restrict visitation, nor is HIV/AIDS. Failure to comply with visitation orders can be addressed through contempt proceedings or by modifying custody.
Grandparents’ Visitation: Grandparents can request visitation if a parent has passed away, if the marriage has ended, or if the child has lived with them for at least one year. They must show that visitation is in the child’s best interests and does not interfere with the parent-child relationship. The court will give “special weight” to a parent’s decision about whether third-party visitation serves the child’s best interests.
Enforcement of Visitation Orders:
- Civil court orders can impose fines or jail time for non-compliance.
- Violators may also have to pay attorney’s fees and court costs.
- Custody and visitation orders from other states are enforceable if registered under the Federal Parental Kidnapping Prevention Act.
Contempt for Violating Custody and Visitation Orders: A person who willfully fails to follow a custody order may face:
- Up to 6 months in jail;
- A fine of up to $500;
- Up to 6 months of probation;
- Suspension of their driver’s license;
- Payment of attorney’s fees and court costs.
To be jailed for contempt, the court must specify the conditions for release.
Child’s Preference: The child’s preference is a factor in custody decisions, but its weight will depend on the child’s age and maturity.
Appointment of Guardian ad Litem: In contentious cases, the court may appoint an attorney to represent the child’s interests. The child’s attorney will advocate for the child’s wishes, with parents typically covering the legal fees.
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