When parents separate and divorce, grandparents may get caught in the middle. Opportunities to spend time with their grandchildren may be restricted by one or both parents. In these cases, grandparents may lose all rights to see their grandchildren if they don’t become legally involved in their adult child’s custody case.
What can grandparents do to protect the bond with their grandchildren – or, perhaps, protect their grandchildren’s safety and wellbeing – when the children’s parents separate? Grandparents have two basic options: File suit for custody, or file suit to gain visitation rights.
If the children’s parents have abused or neglected your grandchildren, or have acted inconsistently with their Constitutional right to parent the children – such as allowing a grandparent to care for the children for extended periods without providing support, or allowing a grandparent to make major decisions related to the children’s wellbeing – the grandparent may seek custody of the children. This type of lawsuit is known as a “third-party custody case.” To prevail, the grandparent must show evidence of the parents’ abuse, neglect or conduct otherwise inconsistent with the Constitutional privilege to care for their children. If the grandparent overcomes this legal hurdle, she must then show a judge that it would be in the children’s best interest that she (rather than one or both parents) be granted custody of the grandkids. Government agencies, such as Child Protective Services, may or may not be involved in these cases.
In cases where separating parents have adequately cared for their children but a grandparent knows or fears that one or both parents will not allow him to see the children after divorce, a grandparent has the right to ask the court to grant him visitation with the grandchildren. In these “visitation” cases, a grandparent must “intervene” – ask the court to allow him to become a party to the pending custody case – and then provide evidence that he has a “substantial relationship” with the child that should be maintained through regular visitation. Ultimately, the grandparent must prove that visitation would be in his grandkids’ best interest. The important point to remember in these cases is that the case must be “pending” – that is, no final or “permanent” custody order has been entered, or if a permanent custody has been entered, a parent is seeking to modify that order.
In our Podcast, Jaime Davis discusses the topic of grandparent visitation with her law partner Stephanie Gibbs, who often represents grandparents involved in custody disputes.