There are several reasons why a grandparent may decide to file for legal custody of their grandchild. In some cases, it comes unexpectedly — like when one or both parents pass away, and the grandparent becomes responsible for the legal custody of a grandchild.
In other cases, the child’s family could be facing serious financial issues or severe mental illness and need the grandparents' help. Those grandparents may need to complete school enrollment forms or take the child to a doctor’s appointment, so they file for legal rights to become legal guardians.
Below are additional common reasons grandparents may file for custody of their grandchildren:
- Either the sole parent died, or both parents have died.
- The parents are deemed unfit to care for their kids.
- The children have already been living with grandparents for at least one year.
- Parents have given up their children voluntarily.
- There’s a risk of abuse, and the children are given up involuntarily.
Let’s discuss in more detail the reasons why a grandparent can legally file for custody, what a grandparent’s rights are, and the typical steps to file for custody.
Death or incapacitation
When both parents die or become incapacitated without a will, the custody of their minor children — who are left without a legal guardian — is decided by the courts. Often, grandparents or siblings are next to gain custody.
For grandparents to have legal and physical custody of their grandchild, they still must prove that it’s in the best interest of the child.
For parents looking to avoid leaving their child’s care to the courts, they can work with a lawyer to draw up a will and healthcare directive.
Voluntary custody agreement
In some cases, parents may be struggling and need support from family members, like grandparents, to help care for their children. The percentage of child poverty was 16.9% in 2021, with many states’ rates varying as much as 8.1% – 27.7%.1
In cases like these, grandparents can petition the courts for custody of their grandchildren to help provide support to the family and become a legal guardian. This can give grandparents the ability to register their grandchildren for school or make doctor’s appointments.
The courts typically review the agreement to verify the parents haven’t been coerced and that it’s truly in the best interest of the child to grant grandparents custody.
Deeming someone an unfit parent, also known as “involuntary termination of parental rights,” is when the courts determine that a child can’t live safely in their home due to potential for harm from parents or the parents’ inability to provide their child with basic life needs.2
If a grandparent believes this to be the case, they can petition the courts for custody of their grandchildren. However, they must collect and provide evidence to present to the courts through documentation, such as police reports, medical records, and/or witness testimony.
What makes a parent unfit?
The court determines if a custodial parent or both parents are unfit to care for their children and keep child custody. The courts will consider the following determining factors when weighing the case:
- Abandonment or desertion
- Physical and/or emotional abuse
- Other documented forms of abuse
The court will then review the evidence to make a judgment on whether it’s in the best interest of the children to live with the grandparents instead of their parents.
Do grandparents have rights?
Grandparents’ rights don’t take precedence over the child’s parents’ rights. However, grandparents can petition the courts to gain rights and custody of their grandchildren. There are different types of custody and visitation rights a grandparent can try to gain.
Grandparent custody rights
Depending on the situation, grandparents can petition to gain access to different types of custody of their grandchildren.
There are four types of custody:
- Legal custody: This gives the legal guardian the ability to make decisions about the child’s health and well-being, like medical decisions or enrolling them in school.
- Physical custody: This is when the child physically lives with their legal guardian.
- Joint custody: Two or more parties share custody of the child and the associated responsibilities.
- Sole custody: One legal guardian is responsible for taking care of the child’s well-being.
Grandparent visitation rights
Life events, like a divorce or the death of a parent, can cause friction in a family. This can lead to the child’s parent restricting or removing grandparents’ rights to visitation.
Most states encourage grandparents to try to resolve the issue directly with the parent or go to arbitration before going to court for visitation rights. It’s important to note that the courts favor parental rights over grandparents’ rights in most cases and states.
How can grandparents get custody?
Grandparents who are in a position to file for custody of their grandchildren will need to prove to the courts that they’re capable of caring for their grandchildren.
To strengthen their case, grandparents may need to:
- Demonstrate a stable and nurturing home for their grandchildren
- Prove a relationship with the grandchildren
- Provide documented evidence of neglect or abuse (depending on the case)
A family law attorney can help with the legal process to help gain custody of their grandchild.