Children in unsafe home how does grandparent gain custody?

Recently on our legal forum a grandparent asked, “If I know that my grandchildren are living in unsafe living conditions what do I have to do to gain custody of my grandchildren?”

Given the instability of many American families it’s not unusual for many grandparents to become the primary caregivers of their grandchildren. The specific laws and procedures for awarding grandparents custody, however, vary by state.

Assuming the parents are capable of providing a safe and healthy environment and are interested in participating in child rearing, the state prefers to place children with their parents. With that said, grandparents who wish to be awarded custody of their grandchildren will have a very high burden of proof and must offer very compelling evidence for their custody case.

Proving a parent is unfit to parent

Grandparents generally will not be awarded custody of their grandchildren unless they can prove both parents are unfit, which means the child's health, safety, or welfare may be at risk. For example, the child is living in an abusive home, the parents have a mental illness and cannot care for the child, or the child’s parents are addicted to drugs or alcohol.

If one parent dies, the grandparents may also not be awarded custody if the other parent is available to rear the child. The courts generally assume it is the fundamental right of the parent to have custody of the child, even if the grandparents were providing care prior to the parent’s death. Exceptions may exist, however, if the remaining parent has no desire to parent, had previously abandoned the child, or is unable to provide a safe home for the child.

Bottom line, winning custody as a grandparent will require the grandparent to prove that they can provide a home which is in the best interest of the child and the alternative living environment is dangerous and detrimental to the safety and well-being of the child.

What if both parents are dead?

If both parents have died and the grandparents have been listed in the will as the guardians of the children, there is a high degree of probability that the court will respect the wishes of the parents.

If there is not a will, however, the courts will determine child custody. The courts will, however, generally favor placement with a close blood relative. Grandparents may be an option, but if there is any type of dispute over custody the grandparents may have to offer evidence that placing the children in their care is in the child’s best interest.

How does the court determine what is in the best interest of a child?

Many states have outlined specific factors that the courts must consider in a child custody case. These same factors can also be considered if a grandparent is seeking custody or visitation of a grandchild. Although state laws differ and each state has their own set of factors, the court may consider factors such as the ones identified below:

• Whether the visitation is in the physical and emotional interest of the child
• The wishes of the parents
• The ability of the grandparents to meet the needs of the child
• The wishes of the child
• Whether the grandparents and child had a strong relationship prior to the divorce/death
• Whether there is evidence of abuse by the grandparents
• Whether the grandparents are able to provide love, affection, and proper contact with the child
• The distance to visit the grandparents
• Whether the court has deemed either parent is unfit

Should I report the abuse?

If you suspect your grandchildren are living in an unsafe environment you can first discuss the issue with the parent. If the parent is unresponsive or you do not feel safe having that discussion, you can report your concerns to the Department of Family Services in your state.

You will need to provide the name, address, and age of the child. You will also need to provide information about the parents or other caretakers and the reason for the report. You can keep your report anonymous, but the agency may need your contact information to further discuss the case. The important thing is to always err on the side of safety for the child.

The child protective services will conduct an investigation, and if necessary, refer the case to the local social service agencies, or to juvenile, family or criminal court. After the investigation if the court determines the parents should not retain custody of the children, you can talk to a lawyer about how you might be given custody.

Services offered by the state

If you are a grandparent currently caring for a child you may need help. The good news is states may offer services to assistant grandparents, especially those who are currently rearing their grandchildren.

For example, states may help grandparents locate non-custodial parents, establish paternity of a child, order child support payments, redirect child support payments to the custodial parent or the relative caring for the child, help with collection and distribution of child support, and review the child support order.