The Other Side of Divorce – Custody and visitation rights for grandparents
Today’s “modern family” has many looks – including more gray hair as grandparents increasingly take over the role of parenting (this time around for their grandchildren) due to such factors as the challenging economy and higher divorce rates.
Consequently, we’re increasingly seeing another side of divorce: Grandparents going to court to secure visitation or custody rights for their estranged grandchildren.
Nancy L. Richardson, an collaborative family law attorney with Stewart, Melvin & Frost, answers questions on grandparent’s rights.
Question: It is common to hear about custody battles between a husband and wife who are divorcing. But why are we now beginning to see this legal battleground shift to grandparents in some cases?
Nancy: This trend seems to reflect the fact that more and more grandparents today are becoming more involved in raising the children of their own children. There are many reasons, but the biggest factors tend to be the recent economy and higher numbers of single mothers. The grandparents simply are having to get more involved with raising their grandchildren, often out of economic necessity.
In most cases, the courts will honor and protect a parent’s right to custody, assuming that this is in the child’s best interest. But there are also situations in which the courts will award full or temporary custody to a grandparent.
The reasons for granting custody of a child to a grandparent may be economic related – perhaps the biological parents are homeless or unemployed, for example. Even then, however, these reasons still may not be enough for a parent to lose their custodial right over their child.
More often, custody is granted to a grandparent due to such events as drug abuse, misconduct, neglect, or other circumstances that could harm the child’s wellbeing. Or in other cases, the parent (or parents) may simply agree to a voluntary contract of release of their children to a grandparent or other legal guardian.
Question: What can a grandparent do if he or she is being prevented from seeing their grandchild?
Nancy: An example of this situation is when a mother is granted full custody of her children and then refuses to allow the parents of her divorced husband to see or visit their grandchildren.
Ideally, a grandparent would not have to take legal action and could work out an agreement with the parents. However, if this is not the case, a grandparent can go to court to obtain legal visitation rights. In doing so, they must demonstrate that the child could suffer long-term harm – physical or emotional – if visitation rights are not allowed.
According to Georgia Code 19-7-3, examples of such harmful situations occur when:
the child has lived with the grandparent for at least six months;
the grandparent has provided financial support to the child;
Or there is an established pattern of visitation or child care by the grandparent.
In most cases, a grandparent’s visitation rights will likely be granted if there is a pre-existing bond or relationship with the child that, if broken, would be detrimental to the child.
Question: If the grandparent must take this legal route, how long could it take before they have a definite answer as to their visitation or custodial rights?
Nancy: The answer depends on the extent of opposition by the custodial parent and the diligence of the parties and their attorneys.
As with any litigation, there are timelines for the defending parties to answer a complaint, conduct any desired discovery, probably attempt mediation, and then – if mediation were unsuccessful – schedule a hearing.
It could take from three to six months under normal circumstances.
Question: If a grandparent is interested in seeking custody of their grandchild, what steps should they take?
Nancy: One method is to seek temporary guardianship through a probate court. Basically, this is when the parent recognizes the need for someone else to care for the child and they consent to the grandparent having guardianship over the child for a temporary period of time.
In this case, a form is filed by the consenting parent(s) and the grandparent petitions through the probate court requesting an order of temporary guardianship.
Another way is through the juvenile court – which is typically better equipped to supervise such cases. However, the ultimate goal and focus of the juvenile court is to restore unification between the parent and child after the temporary guardianship period ends.
Regardless of what method an individual chooses, it is important for the grandparent to understand that the court’s decision will be based on the best interest of the child. In most cases, the courts will lean toward protecting the parent’s rights as legal guardian of their children, unless evidence proves that the child would be endangered unless taken care of by a grandparent or other more suitable third party.