In situations where it is in the best interests of the child, the court may award custody to a grandparent who:
- Established the relationship with the child either with the parent’s consent or by court order.
- Has taken or is willing to take responsibility for the child.
- Meets one of these conditions:
- The child is determined to be dependent under juvenile delinquency laws.
- The child is at significant risk due to parental incapacity, neglect, or substance abuse.
- The grandparent has been in the role of a parent for at least 12 months.
Presumptions in Child Custody Cases:
- In a custody dispute between two parents, there is no presumption.
- In a dispute between a parent and a third party, the presumption is that the parent will have custody, though this can be challenged with clear and convincing evidence.
- In a dispute between two third parties, no presumption exists.
Visitation Rights:
The term “visitation” generally refers to third parties, such as grandparents, while terms like primary and partial custody are used for parents. In most cases, the non-custodial parent is allowed reasonable partial custody unless it would harm the child’s physical or mental health. Denial of partial custody is rare and typically occurs only in cases of abuse.
Courts have the discretion to limit visitation times, locations, and circumstances, and usually permit a parent or guardian to move out of state if it benefits the child or parent, rather than to avoid visitation.
Third-Party Visitation:
The court may grant visitation to grandparents or stepparents, particularly when a long-standing relationship exists. The primary factor in these decisions is the child’s best interests. A parent’s cohabitation or sexual behavior is generally not a reason to restrict visitation, and HIV or AIDS cannot be used to deny it. If visitation orders are violated, courts may address this through contempt proceedings or custody changes.
Grandparents’ Visitation:
Grandparents can seek visitation if a parent has passed away, the marriage has ended, or the child has lived with them for at least one year. They must prove that visitation is in the child’s best interests and does not interfere with the parent-child relationship. Courts must give “special weight” to a parent’s opinion regarding whether third-party visitation is in the child’s best interests.
Enforcement of Visitation Orders:
- A civil court order may impose fines or jail time for violations.
- Violators may be required to cover attorneys’ fees and court costs.
- Custody and visitation orders from other states will be enforced if the decree is registered in the state where enforcement is sought, as mandated by the Federal Parental Kidnapping Prevention Act.
Contempt for Violation of Child Custody and Visitation Orders:
A party who deliberately fails to follow a custody order may be held in contempt. Consequences for contempt can include:
- Up to 6 months in jail.
- A fine of up to $500.
- Up to 6 months of probation.
- Suspension of the driver’s license.
- Payment of attorney’s fees and court costs.
A jail order must specify the conditions that must be met for the individual’s release.
Child’s Preference:
While a child’s preference is considered in custody decisions, its weight depends 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. This attorney advocates for the child’s preferences, with the parents typically responsible for paying the legal fees.
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