5 Reasons Grandparents Can File For Custody of a Grandchild

Parents usually keep custody of their children, but in certain circumstances, grandparents may be able to seek custody if it’s in the child’s best interests. This might include when a parent has passed away, been sentenced to jail, or has voluntarily given up custody. 

Grandparent custody issues are complicated, so it’s important to seek help early on. With the right support, you can learn about the different types of child custody and how to apply for them formally. 

Below, we’ll take a look at the ways a grandparent can become a child’s guardian.

1. When your grandchild has lived with you for a long time

When grandparents fill in the parental roles for a long period of time, there may be a point where the court may consider granting custody. If you make their meals, buy their clothes, make sure they go to school, and parent them exclusively, you might be considered a de facto parent.

Examples where a grandparent might file for custody:

• The parents left the child with a grandparent and never returned
• A child lives primarily with a grandparent for the majority of the time

2. When the parents agree to let you step in

Parents may voluntarily agree to grant custody or guardianship to a grandparent. This can happen when parents face excessive hardships that prevent them from providing their kids with a stable home environment.

An informal agreement between a parent and a grandparent doesn’t confer legal custody. Anyone with parental rights will need to voluntarily sign off on an agreement that is approved by the court before this arrangement is official. 

Examples when parents might choose to give custody to grandparents:

• If a parent must be abroad for long periods of time and there is no other fit parent, they might decide to give a grandparent joint custody so as not to interfere with the child’s education or home stability
• Parents agree to give grandparents custody due to health complications
• Parents acknowledge their long-term inability to care for the child

3. When the parents pass away

Many parents name legal guardians for their children in their Wills. In the case that both parents pass away, legal guardianship passes to the party named in the Will. Parents have a lot of freedom to make this decision themselves, as long as the guardian they select is willing, but there are some conditions.

If the parents did not name a guardian, then grandparents can step forward to offer to take custody, but the decision will be made by the court.

If one parent passes away, the other parent usually gets custody unless there are circumstances that make them unfit or unavailable, such as incarceration.

4. When a parent can’t care for the child

Another situation where grandparents might step in and seek custody is when a parent is unable to care for a child. This might be because they are incarcerated, or it might be related to a parent abandoning the child at some point.

When this happens, the courts could look to the grandparents as potential adults who can step in and provide stability in the child’s life.

5. When there’s abuse or neglect

In situations involving abuse or neglect, courts and child protective services may become involved. In these cases, grandparents may be considered as part of the child’s placement options.

How the courts decide if a grandparent should get custody

In most circumstances, parents determine who will care for their child, even if other family members disagree. 

If there are legitimate custody issues, courts generally consider the ‘best interests of the child’ to decide. They will generally consider a wide range of factors before ultimately determining which party is best able to provide for the child’s financial and emotional needs. 

Some of the most important factors include: 

• The child’s physical safety and emotional health: Judges will consider whether a child’s physical and emotional health is most secure with a grandparent.
• The grandparent’s ability to provide a safe, stable home: This includes considerations like financial resources.
• The child’s bond with grandparents: Judges might consider how actively grandparents are in the child’s life.
• The child’s age and, in some states, what the child wants: The child’s age is also a factor. Some states allow older kids above a certain age to weigh in on who they want to have custody as well. 

It’s up to a judge to decide what is best for your grandchild, but you can volunteer to take custody if the child needs it. With a LegalShield membership, you can get assistance from a provider law firm to help you understand custody and family law concerns. 

How grandparents can file for custody of a grandchild

The process of getting custody is different depending on the circumstances and your state.

If the parents agree or you’re named in a Will, the process will look much different than if you’re challenging the parents’ wishes. In situations where a child is at risk, custody decisions may be part of other court decisions or emergency actions by child protective services. It’s often helpful to seek professional legal guidance to navigate these situations. 

Generally, you’ll file a form with the court and provide the parents with notice before the case can move forward. The process of getting grandparent guardianship usually goes like this:

1. Talk with a lawyer to understand the law in your state. Custody laws vary significantly from one state to another, so you should speak with a lawyer in your state. 
2. Determine if you have the legal standing to file for custody. Grandparents can only file for custody for very specific reasons, so you should check if you qualify. 
3. File the right forms with the court, asking for custody or guardianship. 
4. Serve (notify) the parents. Before your case can be heard, the parents must be served and they will have an opportunity to respond. Service must be done properly. Working with a lawyer ensures proper service. 
5. Be patient and attend court-mandated appointments. This process can take time to play out in the court system, especially if a judge requires you to enter mediation or have the children evaluated first. 

Clear up how to file for custody of a grandchild with LegalShield

Custody laws vary widely and can be complex. With LegalShield, you can speak with a provider lawyer who can help you understand your rights, evaluate your situation, and guide you through the next steps with more clarity.

LegalShield members receive legal guidance on many matters, like child custody questions, from provider lawyers. 

Frequently asked questions

Can grandparents get custody?

Grandparents may be able to get custody in certain situations, depending on the circumstances and the state law. This differs across the country, as some states provide grandparents with a process for seeking visitation or custody while others don’t. 

Are grandparents legal guardians?

Grandparents are not automatically considered to be legal guardians of a grandchild, but they can be granted these legal rights by the court through a Will or in situations when the parents are unable to care for the child. 

What can be used against a grandparent in a custody battle?

In a custody battle, the courts will consider any factor that might impact a child’s safety, such as grandparents’ history, home life, and physical ability to care for a child.

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