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When can grandparents get custody of a grandchild?



Courts generally affirm that parents have the legal right to care for and determine what is best for their children. When a third party, including grandparents, seeks custody, the court balances the parents' rights with the child's best interests. Grandparents who believe their grandchild would be best living with them need to present a compelling case.

Grandparent Custody When Both Parents Are Alive

Child custody laws vary by state, but in general, when both parents are alive, the court prefers to place the child with one or both of the parents. Third parties may be able to obtain custody if both parents are unable or unwilling to care for the child.

Some circumstances that warrant placing a child with grandparents might include:

  • Both parents are deemed unfit.
  • Both parents consent to giving the grandparents custody.
  • Documented abuse or neglect in the parents' home
  • Drug or alcohol abuse in the child's home.
  • A parent's mental illness.
  • One parent is unfit, and the other can't or won't take the child.

Even in circumstances such as these, grandparents may not get custody if other family members also want the child. One factor that can weigh greatly in the grandparents' favor is if they have been acting as their grandchild's parents prior to seeking custody. Some courts require that the grandparents care for the child for at least one year before they will grant a custody petition.

In the end, the courts decide custody based on the best interests of the child as the court interprets it.  Learn more about grandparents' rights in the child custody process.

Grandparent Custody After the Death of the Custodial Parent

If the custodial parent dies, the court's first choice is often to place the child with the other parent, even if that parent has not been actively involved in the child's life. The second choice tends to be a close blood relative. If the grandparents are not the only relatives able and willing to care for the child, the court determines who is the best individual to have custody based on the child's best interests.

Some factors that may work in the grandparents' favor are:

  • The grandchild and custodial parent were already living with the grandparents. In this case, staying with the grandparents could provide stability.
  • The parents left a will naming the grandparents as guardians.
  • The child wants to live with the grandparents.

Courts also consider the grandparents' age, health, and financial situation when assessing how well they can care for their grandchild.

State laws vary widely regarding custody and third-party rights. If you feel your grandchild would be better off in your custody, talk with an experienced child custody attorney in your area to determine if you have a case.