The law generally provides that the legal right to care for a child rests on the parent. This, however, does not mean that a third party such as a grandparent cannot be granted some rights to the child. In such situations, the court balances between the child’s best interests and the rights of the parent. As a grandparent, you need to present a compelling case for the courts to grant you custody or visitation rights.
State Provisions regarding custody and visitation
There are certain provisions made is the statutes regarding custody and visitation rights. Grandparents need to work with a lawyer in their state to establish what these rights are. These rights govern visitation, custody arrangement and the venue where such petitions can be filed. While many of these statutes are similar across different states, there are statutory provisions that may differ slightly.
In New York, for instance, the laws that touch on grandparent visitation rights are brief and complex. Again, the language used has more legal jargon compared to other states. While many grandparents have obtained visitation and even custody rights from New York courts, it is crucial to seek the expertise of a custody and visitation lawyer. The general trend is that the courts must establish the best interests of the child.
Seeking custody rights when the parents are alive
While the rights to custody mostly rest on the parents, grandparents may get custody under the following circumstances.
• If the courts deem that both parents are unfit.
• If the parents agree to grandparent custody.
• If the court establishes that there is neglect or abuse by both parents against the child.
• Mental illness or incapacity to care for the child by both parents.
• Drug abuse in the home where the child resides.
• If one parent is deemed unfit and the other one is not willing to stay with the child.
While these are valid reasons, the courts may also grant joint custody to other relatives who may want to care for the child. For a court to rule in favor of the grandparents, they have to have had a good and active relationship with the children prior to the custody petition. If for instance, the children were living with their grandparent, then this makes a good case. In some cases, the court may provide that the children have to live with the grandparents for at least one year before custody is granted.
Custody rights after the custodial parent has died
In the event of the death of a custodial parent, the courts will try to get the other parent to assume full custody. If they are unwilling or unfit, the court can consider close relatives including grandparents. In such instances, the courts will determine the relatives that serve the best interest of the child. Several factors can work in favor of the grandparents.
• The custodial parent and the children were residing with their grandparents. In this case, the stability factor favors the grandparents.
• The custodial parent named the grandparents as guardians in a will.
• The children wish to live with their grandparents.
In addition to this, the courts will still consider the financial status, age, and health of the grandparents before determining custody.
The need for a grandfathers rights lawyer
As is evident, the grandparent must submit a compelling case for the court to grant custody. Even in circumstances such as the death of the parents, the court will still look into other relatives before deciding on the best person to care for the child. A lawyer can present a solid case and help the judge see why you are the best person to care for your grandchildren.
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