How Grandparents Get Custody
How can grandparents get custody of their grandchildren? We are assuming that the children's parents, or remaining parent, will not agree that grandparents should have custody. When grandparents want custody of their grandchildren against the parents' wishes, the grandparents often face a tough legal challenge.
Family law – including divorce, custody, child support and visitation – is normally a creature of state law in which the federal courts rarely get involved. But when a party makes a federal constitutional claim, the federal courts can get involved. That was the case in the important grandparent rights case of Troxel v. Granville which the United States Supreme Court decided in 2000. The Troxel case is critical to grandparents" rights in any state because it imposes constitutional safeguards for parents.
In Troxel, paternal grandparents tried to obtain visitation with their grandchildren after their son had died. The children's mother, Ms. Granville, did not prohibit all visitation but sought to restrict the frequency and location of visitation.
The Troxels filed suit to obtain visitation with their grandchildren under Washington State's visitation statute. That statute permitted "any person" to petition a court for visitation rights to a child. The trial court was at liberty to grant visitation rights if visitation would be in a child's best interest. The Troxel trial judge granted the Troxels less visitation than they sought but more than Ms. Granville had offered. Ms. Granville appealed and, ultimately, the dispute arrived at the United States Supreme Court.
The Supreme Court summarized prior decisions establishing that parents enjoy a fundamental constitutional right "to make decisions concerning the care, custody, and control of their children." The Court ruled that the Washington statute violated Ms. Granville's fundamental rights. There were two problems with the statute: First, it failed to recognize "any presumption of validity or weight whatsoever" to a parent's decision to curtail visitation with a child, according no deference to "a parent's decision that visitation would not be in the child's best interest." Second, the Troxels neither alleged nor proved that Ms. Granville was an unfit parent. "That aspect of the case is important, for there is a presumption that fit parents act in the best interests of their children," said the Court. Instead, the trial judge had substituted his own view of what would be in the best interest of the children for that of Ms. Granville, which violated the constitution.
Although Troxel involved visitation with grandchildren, not the obtaining of custody by grandparents, the principles of Troxel apply to custody decisions because granting custody to a grandparent constitutes an even greater interference with a parent's right to determine what relationships are in a child's best interest.
Each state has interpreted Troxel with respect to its own statutes and often in differing ways. If you are a grandparent seeking custody, you should consult with an experienced family law attorney in your jurisdiction. But Troxel did make one thing clear: A grandparent cannot obtain custody of a grandchild over the parents' objections unless the grandparent can prove in court that the child's parent or parents are unfit.
Check out the Grandparent Rights Reporter.