This day in age, there seems to be an ever increasing number of grandparents that are taking on parental duties for their grandchildren. It is one thing to take on the day to day duties of the parent, and quite another to have all of the legal rights that a parent has. What steps then must a grandparent or grandparents take if they want to have decision making power and legal physical custody of the grandchild?
Grandparents’ rights allow a grandparent to request physical and legal custody of a grandchild if they have acted in loco parentis. This is a legal status that permits them to act as the child’s parent in certain circumstances. A grandparent can achieve this status if the grandparent-child relationship began with the parents’ consent or by court order, the grandparent is willing to assume responsibility for the child and one of the following conditions is met: (1) the child is a dependent child (meaning that the child has been taken into the care of the state); (2) the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity, or (3) the child has resided with the grandparent for at last 12 consecutive months, excluding brief temporary absences of the child from the home and is removed from the home by the parents, in which case the grandparents’ action must be filed within six months.
Grandparents most often seek custody under the second and third circumstances. Our office is often contacted by a concerned grandparent who has a drug dependent child or a child who is in an abusive relationship. In these cases, the grandparent wants to remove the grandchild from a dangerous situation as soon as possible and our firm can help guide them through the process.
The other situation in which our firm is contacted by grandparents arises when the child has lived with the grandparent for a period of time but the parent has since removed the child from their home. As long as the child resided with the grandparents for a long enough period of time, the grandparent can seek custody. It does not matter whether or not the child’s parent lived with the grandparent as well. Therefore, as long as the grandparent files a petition for custody within six months of the child leaving the home, the grandparent has standing to seek custody.
If you are a grandparent and need to pursue a custody action for any of the above reasons, it is important to consult an experienced family law attorney as soon as possible. The custody process can be complex and adversarial and you may have a finite time to file the custody complaint.