by Greg Dunn

Created on: January 17, 2011   Last Updated: February 02, 2012

When a grandparent is seeking custody of a grandchild, it is usually because the child is being abused or neglected or have been abandoned by their parents.    Whatever the reason, when a grandparent seeks to gain legal, physical custody of a grandchild, it is a very stressful situation for all parties involved and can create long, divided, lifetime resentment.   But, with the overall concern what is best for the child to be decided by the judicial realm, it is a step that must often be taken.

Child custody requirements are by the state where the child resides.  The following is just a brief overview of what is looked at to determine how to gain legal custody of a grandchild.  It is highly recommended that a grandparent seek legal advice from attorney when seeking custody.  It can be a very complicated process as the grandparent will have to file judicial petitions in the appropriate courts.   For instance if the matter is being address in Juvenile Court, you would not file the petition in District Court.  If a wrong document is filed or filed in the wrong place, it can lengthen an already long process.  Also, if a State Agency, such as Child Welfare, is involved it may help or hinder your case.   Child custody cases are complicated and stressful.  Grandparent custody cases can be very complicated and it is very important you have an expert there to assist you through it.  

 There are two areas the courts usually look at when determining whether to intervene in a parent-child relationship.   These areas are (1) “Parental Rights” and (2)“What is Best for the Child”.

Parental rights are based on the assumption a biological or adoptive parent is the guardian of the child.  It is the parent’s natural duty to care, nurture and love the child.  They should have first claim to their child.

What is best for the child is when custody is in the best interest of the child regardless of the parent’s fitness.  For a grandparent to gain custody, they must be able to show that having the child in their care is best for the child and supersedes the parental rights.  It can require a high level of factual documentation before the court will transfer this custody from the parent.   The decision may take in to account the parent’s capability of parenting and the potential harm to the child that may come to the child as a result of that care.   

Many times,  the parents - because of their current conditions - know the child’s best interest is to be with the grandparents.  In these situations, a notarized letter would be sufficed to grant guardianship and / or custody on a temporary basis.  Again it is highly recommended to consult with an attorney to see the legal requirements of the state the child is residing in.  

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