How Can a Grandparent Gain Custody of a Child?

Many grandparents are actively helping raise their grandchildren; of those grandparents currently raising their grandchildren, many are serving as primary guardians. The number of grandparents raising grandchildren in the United States has seen a steep incline. There are many reasons a grandparent may need to step in to take care of their grandchildren, but in recent years, the national opioid addict has left many children without their parents. While most custody cases involve parents, grandparents can and do file for custody of their grandchildren. In 2018, there were 70 million grandparents in the US, and 10% of those grandparents were living with or raising their grandchildren, which is up 3%. In Tennessee, 7% of grandparents are raising their grandchildren. According to the Tennessean, there are roughly 76,406 grandparents serving as guardians to their grandchildren, many without proper custodial rights. So, can a grandparent petition the court for custody of their grandchildren?

Obtaining Custody if Both Parents Are Alive

For grandparents petitioning for custody of grandchildren who have living parents, the court will work hard to establish custody with one of the child’s parents. While the state will look at what is in the best interest of the minor children, there is a preference for placing children with their parents. If neither parent is willing or in a position to provide safe care for their children, grandparents can be awarded custody.

Common reasons grandparents could gain custody of minor grandchildren:

• There is a history of abuse and neglect in the child’s home

• There is documented mental illness challenges in the home

• The child’s parents have consented to grant custody to the grandparents

• There is a history of drug or alcohol abuse in the child’s home

• Both parents have been found unfit for custody

Depending on who else is seeking custody, the grandparent’s petition could be denied, especially if the child has an established relationship with another family member and there is a current custodial relationship. However, if the grandparent has been providing care for the child for over a year and has also had physical custody of the child during this time, the court may give greater weight to the grandparent’s petition.

Obtaining Custody if the Custodial Parent Is Deceased

If the child’s custodial parent has died, and they had sole custody of the child, the court will look to the child’s other parent before seeking out a grandparent to establish custody. Unfortunately for the grandparent, even if they have enjoyed a close relationship with their grandchild, the court may still look first to the child’s other parent, even if they don’t currently have a place in their child’s life. In the event of the death of a custodial parent, the court’s second choice after a parent would be a close relative. A close relative is not defined by the closeness of the relation. It’s determined by which household would be the best fit for the minor child.

The court will look review many factors when determining custody in this situation:

• Has the child been living with the relative petitioning for custody?

• What are the age, health, and financial stability of the petitioning relative?

• Does the child want to live with the petitioning relative?

• Did the parents have a will? Was the relative listed as a guardian?

Contact the Child Custody Attorneys at Patton | Pittman

If you are in a situation where you may need to petition for custody of your minor grandchildren, you can contact the grandparents’ rights attorneys at Patton | Pittman today for assistance. Our attorneys can help you navigate the legal proceedings and ensure you have put together a strong petition for custody of your grandchildren. Call today at (931) 361-4477 to schedule a consultation.

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