Grandparents’ Rights in Child Custody Cases

A grandparent may be awarded custody of a grandchild if it is determined to be in the child’s best interests, provided that:

  1. The grandparent established the relationship with the child with the consent of a parent or by court order.
  2. The grandparent is willing to take on or has already taken responsibility for the child.
  3. One of the following conditions applies:
    • The child has been legally declared a dependent under juvenile delinquency laws.
    • The child is at significant risk due to parental issues like incapacity, neglect, or substance abuse.
    • The grandparent has acted 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 favoring one over the other.
  • In a dispute between a parent and a third party, the presumption is that the parent will retain custody. This presumption can be challenged with clear and convincing evidence.
  • In a dispute between two third parties, there is no presumption.

Visitation Rights:

While the term “visitation” is often used for third parties, parents usually refer to primary and partial custody. In general, the non-custodial parent is granted reasonable partial custody unless it is harmful to the child’s mental or physical health. Denying partial custody is rare and typically only occurs in cases of abuse.

Courts may set limits on visitation in terms of time, location, and conditions, and generally allow a parent or guardian to relocate out of state if it benefits the child or parent (not to evade visitation obligations).

Third-Party Visitation:

Grandparents and stepparents may be granted visitation, particularly if they have an established relationship with the child. The decision is typically made based on the child’s best interests, and a parent’s cohabitation or sexual activity is not a valid reason to deny visitation. HIV or AIDS is also not a basis for denying visitation. Non-compliance with visitation orders may result in contempt actions or a change of custody.

Grandparents’ Visitation:

Grandparents may seek visitation rights if a parent has passed away, if the marriage has ended, or if the child has lived with the grandparents for at least one year. The grandparents must demonstrate that visitation is in the child’s best interests without disrupting the parent-child relationship. Courts must give significant weight to the parents’ decision about third-party visitation.

Enforcement of Visitation Orders:

  1. A civil court order may impose fines or jail time for non-compliance.
  2. Parties violating visitation orders may also be required to pay attorneys’ fees and court costs.
  3. Custody and visitation orders from other states will be enforced if the decree has been registered in the state where enforcement is sought, as required by the Federal Parental Kidnapping Prevention Act.

Contempt for Violation of Custody and Visitation Orders:

A party who willfully disobeys custody orders may be held in contempt. Punishments may include:

  1. Up to 6 months in jail.
  2. Fines up to $500.
  3. Probation for up to 6 months.
  4. Suspension of the individual’s driver’s license.
  5. Payment of attorney’s fees and costs.

If a person is jailed for contempt, the court must specify the conditions that must be met for their release.

Child’s Preference:

The child’s preference is a factor in custody decisions, though the weight given to the child’s wishes depends on their age and maturity.

Appointment of Guardian ad Litem:

In contested cases, the court may appoint an attorney to represent the child’s interests. The attorney advocates for the child’s preference, with the parents typically responsible for the attorney’s fees.

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