A topic that has become more prevalent in family law is the issue of grandparent rights to visitation and custody of child. This is to impart to more and more grandparents who taking on the responsibility of taking care of their grand children. Although grandparents may have some rights, those rights are not absolute nor are they guaranteed. Basically, there are two types of rights that grandparents may assert. The first being a request for visitation and the second being a request for custody. If a grandparent would like to seek visitation with a child, a grandparent may do so if there is an open action concerning the child but the grandparent must show that such visitation would be in the child’s best interest. It is important to note that even if a grandparent is granted visitation rights those rights may be terminated at any time if the court finds that such termination would be in the child’s best interest. For a grandparent to obtain custody for a child, the grandparent must show one of two things. First, that the child must be in the physical care for the past 6 months such as when a grandparent and a biological parent have been sharing equal care and control of the child for 6 months or second, that the child is not in the physical care of either biological parent. Although there is no time frame imposed on the second scenario, the grandparent must show that the biological parents allow the grandparent to assume sole care and control of the child. If neither of these can be shown, a grandparent may not seek custody of a grandchild. Countless of statutes provide that a grandparent that a grandparent has a priority with regards to custody in a guardianship case. It also provides conditions under which grandparents do have visitation rights. Visitation rights are predicated on the best interest of a child, a finding of perennial unfitness and the nuclear family where the child resides is no longer intact. So, do grandparents have visitation and custodial rights? The answer is yes because rights are not absolute and certain procedures have to be followed to establish what those rights might be. Grandparents are entitled to seek visitation rights if there if there is an ongoing lawsuit. So, for example, if mom and dad are in court suing each other for child custody, grandparents can certainly intervene in this case and ask for visitation themselves. Stated otherwise, if mom and dad are staying at home and in a good relationship, can grand dad and grand mom just sue them because they don’t get to see their grandchildren as much as they like? There answer is no, they can’t. Our laws as well as statutes respect the sanctity of the marriage and they are not going to get involved, unless there is an ongoing litigation.
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