Davis Divorce Law is open, processing current divorces and accepting new clients. Click here to read the full statement.

The most important factor to keep in mind as to whether or not a grandparent has any physical custody rights regarding a grandchild is that if both parents agree that allowing a grandparent such rights is NOT in the child’s best interests, the grandparent is unlikely to secure any physical custody rights from the Court. The intent of the law in this regard is to enable parents to raise their children as they see fit and without any outside interference from a grandparent or the Court. Accordingly, if the parents have been and are reasonably good parents and they consider keeping a child away from the physical custody of a grandparent to be in the child’s best interests, the parents have the right to maintain one hundred percent custody between themselves, even if they are divorcing. One must consider that not all grandparents are responsible or capable. Some even refuse to enforce the child-rearing parameters of the parents just to curry favor with the grandchild.

However, if one of the parents decides to file a custody action against the other parent to resolve custody, that invites the Court into the custody issue and that may open the door for a grandparent to join in the action and seek some custody rights. Read that carefully. I did not say that filing a custody action will result in custody rights for a grandparent. It just opens the legal door for the grandparent to seek such rights.

A grandparent may also pursue custody of a grandchild where neglect or abuse by a parent is at issue. One may conclude that the grandparent would have the burden of proof of neglect or abuse in such an action. If the parents allow a child to reside with a grandparent for at least twelve months, that grandparent may be able to maintain custody of that child.

Finally, if a parent dies and that parent is the child of the grandparent, that grandparent may seek custody of that child’s child (the grandchild of that specific grandparent).

As one can see, a grandparent’s custodial rights are limited. That is purposely done, so that parents may raise their child without unwanted interference (and, as pointed out above, for the sake of the child’s safety). Typically, in any family, if the parents and grandparents are decent folks and all get along with one another, the parent will want a child to spend time with grandparents who are responsible and capable.