Grandparenting

Custody

All parents have the legal right to make decisions about the care of their children. If parents do not wish to give custody to another person, no one can force them to do so. However, when extraordinary circumstances exist that make it necessary for a court of law to decide whether it would be in the child's best interest to be removed from the parents and be cared for by someone else, then the parent's rights are diminished. In addition, parents can voluntarily decide to give someone else custody of their child.

Custody arrangements come in two major types; they can be either physical custody or legal custody -- this section will answer some of your questions about these two arrangements.

What is physical custody?
Physical custody occurs when a grandparent takes care of a child without a court's order. Physical custody simply means that a grandparent takes care of a child for a short or long period of time. In physical custody situations, the parents keep all of their legal rights such as the right to visit their children, AND to make decisions about the child's medical and educational needs. The parents also have the right to return, at any time, and take the child away from a grandparent who has physical custody. Grandparents who have physical custody have no legal right to make decisions for their grandchild.

What are some of the problems with physical custody?
Some grandparents who have physical custody do not have any problems -- they are able to enroll their grandchildren in school and may even be able to get medical care for the children from clinics and doctors in their neighborhoods. But, some grandparents who have physical custody may have difficulty consenting to medical care or enrolling the children in school. Grandparents who have physical custody have no legal right to make decisions for their grandchildren about health care or enrolling the children in school. Grandparents who have physical custody, without a court order, also cannot make legal arrangements for someone else to take care of their grandchildren if something should happen to them.

What is legal custody?
Legal custody exists when a grandparent is given the legal right to take care of the child by a judge. A grandparent who wants legal custody has to go to court and prove to the judge that the parents are not able to take care of the child. Grandparents who need help applying for legal custody may contact a legal aid or legal services office or their local bar association (association of lawyers) for assistance. (When grandparents have legal custody, the parents have to go to court if they want their children back.)

What does a court consider when deciding to grant legal custody?
When deciding whether to grant legal custody to anyone who is not the child's parent, the court must find out:

  • whether extraordinary circumstances exist which make it necessary for the court to decide to take legal custody away from the parents.
  • who should get legal custody of the child.

The Court must base its decision on what is in the child's best interests.

What are extraordinary circumstances?
Extraordinary circumstances are reasons why the court would consider taking legal custody away from the parents. These reasons include situations where:

  • the parents voluntarily give children up because they are not able to care for them.
  • the parents have abandoned the children.
  • the parents are not able to care for children because of a physical or mental disability.
  • the parents have neglected the children or refused to provide them with necessary physical, medical or hospital care.
  • other circumstances that the court decides are harmful to the child, are not in the child's best interest, or affect the child's well-being.

What happens when there are no extraordinary circumstances?
If the court finds that no extraordinary circumstances exist, the court has no reason to interfere with, or take custody away, from the parents; the parents will keep custody of the child.

If there are extraordinary circumstances, who will get legal custody?
If extraordinary circumstances are found, the court will then have to decide who gets legal custody of the child based on what is in the child's best interests.

What does the court consider when determining the child's best interest?
The best interests of the child have not been clearly explained by the law and vary from case to case. In order to determine what is in the best interests of the child, the court may consider the following:

  • whether the people requesting custody are able to care for the child
  • the age of the child
  • what the child wants, if that can be determined
  • the need for the child to have stability
  • the psychological health of those who are requesting custody the recommendation of the lawyer for the child (the law guardian)

Can grandparents get legal custody of grandchildren if the parents do not consent?
Grandparents may be able to get legal custody of grandchildren (even when the parents of the children do not agree), if they can prove to the court that there are extraordinary circumstances which requires the judge to consider taking custody away from the parents, and it would be in the child's best interest to give legal custody to the grandparents. If grandparents do get custody, the parents may request, and the judge may allow the parents to visit the children.

Are grandparents who have legal custody responsible for the grandchild's support?
No. Grandparents who have legal custody are not responsible for their grandchild's support even if they have a good income. Grandparents have the right to apply for public assistance programs, like Family Assistance and Medicaid, on behalf of their grandchildren to cover the expenses of the grandchild.

Can a grandparent consent to medical care for a grandchild if he/she has legal custody?
Yes, grandparents who have legal custody can usually obtain medical care for their grandchildren. Most custody orders issued by a judge state that you have the right to consent to medical care for the child. However, some grandparents with legal custody experience difficulties consenting to medical care. If you are a grandparent with legal custody and have difficulty consenting to medical care for your grandchild, contact a legal services, legal aid or legal services for the elderly office or your nearest bar association (association of lawyers), for assistance.

Do I need a lawyer to get legal custody of my grandchildren?
If the parents agree that you should get custody, you may not need a lawyer. However, if the parents do not agree that you should get custody, you will have to show the court that there are extraordinary circumstances that make it necessary for the court to decide whether to remove the child from the parent's custody and give custody of your grandchildren to you. The parents will have the right to a lawyer and a lawyer (called a law guardian) may also be appointed for your grandchild. You should see a legal services or legal aid lawyer or contact your local bar association (association of lawyers).

Is legal custody permanent?
No. Legal custody may not be permanent and can end when either of the child's parents asks the court to return legal custody to them. However, the court has to hold a hearing to determine whether the circumstances, which convinced the court to change custody of the children from the parents to the grandparents, have changed. If the court decides that circumstances have changed, they court must also decide whether it is now in the best interests of the child to be returned to the parents.