GRANDPARENTS' RIGHTS

Grandparents do not automatically have custody or visitation rights over their grandchildren. A grandparent who wants custody or visitation must go to court to get a court order. Whether or not the grandparent could get visitation or custody and which court the grandparent would go to depends on the circumstances of the parents and the grandchild.
 

If the parents are currently married or were never married

• Family Court may grant reasonable visitation to a grandparent if there is a pre-existing relationship between the child and the grandparent such that visitation would be in the child's best interest, and the child's interest in having visitation with the grandparent outweighs the rights of the parents to exercise their parental authority.
• To petition the Family Court for visitation while the parents are married, one of the following conditions must exist:
• the parents must be living separately on a permanent or indefinite basis; or
• one of the parents must have been absent with his/her whereabouts unknown for more than a month; or
• one of the parents must join in the petition with the grandparent; or
• the child is must not be living with either parent.If both parents agree that the grandparent should not get visitation, the court assumes that grandparent visitation is not in the best interest of the child.
• If the parent who has sole legal or physical custody of the child does not want the grandparent to get visitation, the court assumes visitation would not be in the child's best interests.
• If there is no custody order but the child has been living with only one parent, and that parent does not want the grandparent to have visitation, the court assumes that visitation would not be in the child's best interest.

If the parents are divorcing, or there are other Family Court proceedings happening

• If the parents are involved in a Family Court action, such as divorce, legal separation, annulment, child custody, or domestic violence restraining orders, the grandparent can ask the Family Court for reasonable visitation. The court can grant the visitation if it is in the child's best interest.

If one of the parents has died:

• If a parent dies, a grandparent can be granted visitation if the Family Court decides visitation is in the child's best interest.
• Other people who can request visitation if a parent dies include the child's siblings, aunts and uncles, and great-grandparents.
• In granting visitation to a grandparent, the court does not have to consider the amount of personal contact the grandparent had with the child before the parent died.

If the parent has allowed the child to live with the grandparent and has let the grandparent take over parenting responsibilities:

• If a parent leaves his/her child with the grandparent so that the grandparent takes care of the child's everyday needs, such as food, clothing, shelter, and school, the grandparent may be able to get a guardianship over the grandchild in Probate Court.
• If a parent agrees to the guardianship, the Probate Court must find that the guardianship is necessary and convenient.
• If a parent does not agree to a guardianship, the Probate Court must find that it would be detrimental for the child to be with the parent and that it is in the child's best interest to live with the grandparent.
• A parent is entitled to notice of a guardianship proceeding. That means that someone must personally deliver the guardianship papers to the parent, unless a parent signs a form agreeing to the guardianship.
• The legal effect of a guardianship is to suspend a parent's rights and place those rights in the guardian. A parent still has the responsibility to support the child.
• A Probate Court guardianship can be terminated if the parent can show the court that the guardianship is no longer necessary or it is in the child's best interest to terminate the guardianship.

If the child has been removed from the parent by the Department of Family and Children's Services because of alleged abuse or neglect:

• If a child has been removed from a parent because of abuse or neglect, the Juvenile Court may declare the child to be a dependent of the court. If this happens, the Juvenile Court has jurisdiction over the child and will decide where the child will live.
• When a child is removed from a parent, a grandparent can call the Department of Family and Children's Services to let the social worker know if the grandparent can provide a home for the child. Grandparents are often considered a resource for families. The grandparent can also call the social worker to find out when the next hearing is. The grandparent can attend the hearing and let the judge know that s/he has an interest in the child. In some cases, a grandparent can be declared a "de facto parent." This means that the court recognizes that the grandparent has been in charge of the day-to-day care of the child. If the grandparent is a de facto parent, the grandparent will have the right to go to all future court dates and may have the right to a free attorney. Also, if declared a de facto parent, the grandparent will have the right to all court reports regarding the child.
• When a child is removed, many parents qualify for reunification. When a parent qualifies for reunification, the County will give the parents services so they can try to get the child back. Parents are usually given six to eighteen months to prove to the court that they are able to care for the child.
• If the parent does not succeed in reunifying with the child, the judge must either: free the child for adoption, establish a guardianship with a relative, or put the child in foster care. The law makes clear that adoption is the best option and should be the court's first choice.
• A new law, called concurrent planning, says that the social worker must help the parent reunify with the child and plan for adoption at the same time. That means that some grandparents will be asked by the social worker if they want to adopt the child. If a grandparent is not willing to adopt a child, the child may not be placed with the grandparent while the parent is trying to reunify with the child. If a non-relative takes placement of the child and then later adopts, the grandparent loses their legal relationship to the child and any grandparent rights.

Back to the teenparents.org main page