Grandparents and Nonbiological Parents

Can Grandparents Be Awarded Custody of Their Grandchild(ren)?

With respect to custody, while either parent is alive, there is typically a preference that custody of a child be with the parent. In the event of the death of one of the parents, the other surviving parent ordinarily has a preference in law for the custody of a child. When both parents are dead, ordinarily custody is preferred to go to a blood relative, providing a grandparent with a viable opportunity to show the court that it is better for the child to be in his/her custody as opposed to other blood relatives. Courts will consider the age, health, and financial ability of the grandparent(s) to support and care for a child.

Can Nonbiological Parents Be Awarded Custody?

Courts in the past have usually awarded custody to someone other than the biological or natural parents in cases of abandonment or chronic abuse. This has begun to change in recent years. Judges are awarding custody to anyone with an interest in the child (e.g., stepparents, godparents, aunts, uncles, surrogates) who can introduce evidence as to why they would be the better custodians than the natural parent(s). Again, the court’s guiding principle will be the welfare of the child.

What if the Child's Best Interest Does Not Coincide with the Parents' Personal Desires?

It may be in the best interest of the child to remain in the home with people he has lived his entire life rather than be uprooted after the loss of his mother and transferred to someone he does not know. If the natural father challenges the issue and desires custody the court will have a difficult decision to make. If he agrees to the change of custody, the court should most likely grant it. The situation is similar to a step-parent adoption where the state tends to be more lenient in the examination it makes before it grants the change of custody. In this case the natural parent in the household will have passed away; however the child has been living in the home with the stepparent and, if thriving, the court may grant it.

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