Although it is often assumed that a child custody dispute is between parents, this is not always true. Grandparents may have very close relationships with grandchildren and may seek visitation rights or even custody of a child. Good child custody lawyers will tell you that this is a change in family law, as state laws granting rights to grandparents didn’t occur prior to the 1960s or 1970s.
Grandparents’ rights to visitation and child custody differ from state to state. In Pennsylvania, a family court may give visitation to a grandparent if:
- One or both parents of the child has died, or
- The parents have been divorced or separated for more than six months, or
- The child has resided with the grandparent for more than a year.
When a Pennsylvania family court considers grandparent visitation, it is obligated to consider whether the visits are in the best interest of the child and whether the visits would undermine the parent-child relationship. In adoption, the grandparents’ visitation rights are ended, unless the adoption is to a stepparent or the grandparent.
Visitation Rights of Grandparents
The underlying concept of grandparents’ visitation rights is that the contact between grandparents and grandchildren is good for the children. As long as the parents agree with this, visitation can be arranged informally and no court decision is needed. If a parent objects and does not have a reason considered valid (see below), states have laws that protect the rights of grandparents, and may even extend to other family members (called “third party” or “nonparent” rights).
Federal law requires courts in each state to recognize nonparental visitation orders from family courts in other states. There is one US Supreme Court ruling that asserts the Washington state nonparental visitation portion of the state statute violates parents’ rights to raise their kids.
Family courts are obligated to ask the following questions when determining visitation rights for grandparents:
- What is the relationship between the child and the grandparent?
- What is the relationship between the parents and the grandparents?
- How recently have the child and the grandparent been in contact?
- How might the visitation affect the relationship between the child and his or her parents? The American Bar Association recently reasserted the rights of children and parents to have family unity.
- Will grandparent visits negatively impact the child’s time spent with his or her parents?
- Is there any evidence or history of grandparent abuse or neglect of the child?
Custody Rights of Grandparents
Granting custody to grandparents is less common than visitation, and the laws which govern granting custody to grandparents tend to be less specific. In a few states, the law considers grandparents as custodians if both parents have died.
How would grandparents gain custody if a parent is alive and objects to the grandparents’ custody? The grandparents must prove to a family court that the parent is unfit and the child or children would have a better life with them. Good child support lawyers will tell you this cannot be a simple matter of economics (i.e., the grandparent is wealthy and the parent is not), but more of a safety concern for the child such as parental abuse of alcohol or drugs, or parental abuse or neglect of the child.