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3 Reasons Grandparents Can File For Custody Of Grandchild

reasons grandparents can file for custody of grandchild

You may find yourself in a situation where, as a grandparent, you feel it is necessary to gain legal custody of a grandchild. This could be due to a variety of reasons, such as their current living environment being unfit or harmful or the parents being unable to adequately care for them. It’s an emotionally challenging prospect and one fraught with legal complexities. Understanding the process and grounds for which you may file for custody and how a family law attorney can help.

1. Death or Incapacitation of a Parent

When parents pass away or cannot care for their minor children without a will, the courts determine who will have custody of the children left without a legal guardian. In many cases, grandparents or siblings are given priority for custody. However, grandparents still need to prove that having legal and physical custody of their grandchild is in the child’s best interests.

To avoid leaving the decision of their child’s care to the courts, parents can work with a lawyer to create a will and healthcare directive. This allows them to designate a grandparent as the child’s guardian if both parents pass away. If one parent is still alive, custody usually goes to the surviving parent. However, if there are no surviving parents, a grandparent can seek custody as the child’s next of kin.

2. Voluntary Custody Agreement

Sometimes, parents facing difficulties may require assistance from their family members, such as grandparents, to care for their children.

In such situations, grandparents can seek custody of their grandchildren through the legal system, enabling them to support the family and become the child’s legal guardian. This legal arrangement allows grandparents to enroll their grandchildren in school and schedule medical appointments.

When considering these custody petitions, the courts carefully evaluate the agreement to ensure that the parents have not been forced into it and that granting custody to the grandparents is genuinely in the child’s best interest. Another less common scenario involves grandparents seeking custody after their parents have willingly granted them the right to do so. Parents can voluntarily relinquish their custodial rights on a temporary or permanent basis, and if both parents do so, if one parent is deceased and the other relinquishes their rights, or if one parent gives up their rights while the other parent’s whereabouts are unknown (and generally cannot be determined), a grandparent can then file for custody.

3. Parental Unfitness

If a parent has been proven unfit, a grandparent may petition for custody of a child who is no longer in a position to be raised by their unfit parent (provided that no other fit parent is available to assume full custody). If a grandparent believes this is the case, they can request custody of their grandchildren by petitioning the courts. However, they must gather and present evidence, such as police reports, medical records, or witness testimonies, to support their claim.

The court evaluates whether a custodial parent or both parents are unfit to care for their children and retain custody. Several factors are considered, including abandonment, neglect, physical and/or emotional abuse, and other documented forms of abuse. Based on the evidence, the court determines if it is in the children’s best interest to live with their grandparents instead of their parents.

Do Grandparents Have Rights?

In South Carolina, grandparents’ rights are derived from their child’s rights. This means that in normal circumstances, grandparents can only visit their grandchildren when their child has visitation rights. Parents have a protected liberty interest in the care, custody, and control of their children, a fundamental right protected by the Due Process Clause in the United States Constitution. A court must give “special weight” to a fit parent’s decision regarding visitation.

Grandparent visitation can only be granted over a parent’s objection when there are compelling circumstances, such as significant harm to the child. The court considers the best interest of the child and various factors when deciding custody. If one parent dies, the deceased parent’s parents may still have visitation rights if certain criteria are met.

Seeking Legal Advice from a Family Law Attorney

Legal representation is essential in child custody cases, especially involving grandparents or nontraditional guardians. A consultation with a family law attorney may allow you to gain insights into your unique situation and develop effective strategies for your case. These professionals understand the nuances of family law, providing guidance at every step to ensure you’re making informed decisions.

At Steele Family Law, our experienced family law attorneys can provide you with the support you need to navigate the complexities of your unique situation. Don’t wait; contact us now to start building a strong legal strategy to protect your rights and the well-being of your loved ones.

Author Bio

Greg Steele is CEO and Managing Partner of Steele Family Law, a South Carolina estate planning and family law firm. With years of experience in practicing law, he has zealously represented clients in a wide range of legal matters, including divorce, child custody and support, estate planning, probate, and other legal cases.

Greg received his Juris Doctor from the University of Georgia and is a member of the South Carolina Bar Association. He has received numerous accolades for his work, including being named among Anderson’s Top 20 Under 40 in 2022.

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