Important Factors to Consider in Filing for Custody of Grandchildren

Excerpted from Grandparents’ Rights, 4E by Traci Truly ©2005

Over the past twenty-five years, the number of grandparents rearing their grandchildren has risen dramatically. Over four million children live with their grandparents, with nearly one million of those living away from their parents. Most commonly, those parents are absent as a result of drug or alcohol abuse, making them either unable or unwilling to parent their own children. Other factors influencing the rising rate of grandparents rearing their grandchildren include the divorce rate and the economy. Many parents, especially single parents, are unable to afford to care for their children. Sometimes, abuse by a parent or stepparent is a factor that prompts grandparents to seek custody of their grandchildren.

Qualifying to File for Custody
Just as grandparent visitation statutes establish prerequisites for visitation, the states have requirements that grandparents must meet in order to obtain legal custody. In order to have standing to seek custody in most states, you will have to establish that you had significant past contacts with your grandchild. Assuming that the parents appear in court and contest your attempt to get custody, the greatest hurdle you will have to overcome is the parental preference.

In the overwhelming majority of states, the court starts out presuming that the parents should have custody. The burden is on the grandparents to overcome that presumption. Various states use different words and phrases to describe what it takes to overcome that burden, but generally you must prove that the parents are unfit in order to take custody from them. In states that do not have the parental preference, the best interest of the child is the determining factor. Regardless of the standard used by your state, there may be a number of reasons or situations that will cause you to consider filing a lawsuit to get custody of your grandchildren.

Reasons to Consider Filing for Custody
Before you make the decision to file for custody, you will need to weigh the factors that might help you win a custody case and the factors that might cause you to lose. Although each case is different and there may be factors unique to your case that you should also consider even though they are not covered in this book, there are some frequently occurring situations that you should know about.

Abusive or Neglectful Parents
In today’s society, there are more reported cases of abuse and neglect than ever before. Sometimes, this is a reflection of drug or alcohol addiction. There are many causes of abuse.

Addicted parents may leave their children with the grandparents, forcing them to seek custody. In other cases, the grandparents may become the primary caregivers for their grandchildren as a result of action by a child welfare agency. Often, grandparents may become aware of instances of abuse or neglect on their own and decide to seek custody in order to protect their grandchildren.

Regardless of how the grandparents become involved in custody litigation relating to abuse or neglect, a contested custody suit of this nature is likely to be very messy. Most parents who invest the time and money to contest a custody case will vigorously deny that they have abused or neglected their children, especially if the possibility of criminal charges stemming from the abuse or neglect exists. Physical abuse can be difficult to prove, unless there are injuries that could only be the result of abuse that have been documented by third persons. For example, a scar or bruise in the shape of a coiled extension cord is difficult to explain as anything other than abuse—a black eye is subject to many explanations. Sexual abuse is even more difficult to prove. There is rarely any physical evidence of sexual abuse of children. In fact, the only evidence may be the testimony of the child.

Very young children are not legally competent to testify. Older children, although allowed to testify, are easily confused about dates, times, and sequences of events. Children are also easily suggestible, as they tend to be eager to please, and their allegations of sexual abuse are often countered by the coaching defense. The coaching defense involves claims by the alleged abuser that some adult, usually the person bringing forward the allegation, has coached or manipulated the child into saying he or she has been sexually abused.

Undertaking a case of this nature is a very serious endeavor. It requires a major investment of time and money (even if you represent yourself) and is difficult to handle without a lawyer. There is also the very real possibility that if you are unable to convince a judge or jury that the abuse has occurred, you will be totally excluded from the lives of your grandchildren. In spite of those odds, it is also difficult to stand by and do nothing if you have reason to believe that your grandchildren are being abused.

Neglect is also difficult to prove, as there may not be much evidence other than the testimony of family members, many of whom will not want to take sides in a custody fight. The testimony of family members is also more easily attacked than that of disinterested third parties, especially when there is little or no physical evidence to back the claim. In some cases, however, third party evidence will be available. For instance, if the police or child welfare investigators are called in because the children have been left alone somewhere, you will have the testimony of the police officers or investigators to help your case.

If you are able to establish the existence of abuse or neglect, this will be sufficient in most instances to show that the parents are unfit. This alone, however, will not entitle you to custody. You will also have to convince the judge or jury of your fitness as custodian, and show that awarding custody to you is in the best interest of your grandchildren. There may be problems in proving these matters to the satisfaction of the court. (Some of the obstacles are discussed later.)

Unstable Parents
Another situation that may give rise to a custody fight is when the parents are unstable. Instability can refer to a number of situations within the family. A family may be financially unstable or emotionally unstable. When taken in conjunction with the laws of the particular state, the nature and severity of the financial instability determine whether or not a grandparent can get custody. For example, if the financial instability involves frequent job and residence changes, that alone will not be enough for a nonparent to get custody in most states.

However, if the financial instability means that the child is living in substandard housing without the basic necessities, the grandparents stand a much better chance of having enough evidence to win. The same may be said of emotional stability. Particularly in states where the parents have a statutory preference for custody of their children, it will take a significant amount of instability to defeat the presumption. The presence of significant instability is a factor that triggers an evaluation of whether or not a grandparent should seek custody of the grandchildren.

Absent Parents
Parents may be absent from their children’s lives for a number of reasons. The most obvious reason for a parent to be absent is death. Another reason is due to drug and alcohol abuse. An addicted parent may leave his or her child with the grandparents and vanish from the scene. No matter what the reason for the absent

As Featured in the Book

Grandparents’ Rights, 4E

Traci Truly, Attorney at Law

Grandparents’ Rights fully explains what you can do to protect your relationship with your grandchildren. Learn the steps you can take to get the courts on your side and guarantee that you will be able to spend time with them.

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