In today’s world, it is not all that uncommon for grandparents to raise a grandchild. Perhaps the parent has drug or alcohol problems, or there are other reasons the parent is unable to care for the child. Many grandparents have been raising their grandchild for years, only to have the parent return and file for full custody. If the grandparents believe parental custody would not be in the best interests of the child, they may wonder what legal rights—if any—they have in such a situation. There are many issues that will factor into this question. These issues will all be considered by the court before a change is made.
First, did the grandparents file for and receive legal custody of the child? Did the parent sign away his or her parental rights? How long have the grandparents had the child? If the grandparents were legally awarded custody and this legal custody arrangement has been in place for a number of years, it will be more difficult for the parent to regain custody.
If, however, the grandparents never sought formal legal custody—but have raised the children for years and believe it is not in the best interests of the children to be returned to their parents, then the grandparents must file for legal custody. Perhaps the very issues that caused the parent to leave the children with their grandparents still exist. Perhaps the parent has “cleaned up their act,” and now wants to raise their child.
The underlying theme of every decision made for children in the state is that it must be in the best interests of the child. If a child has spent the first ten years of his or her life being raised by loving grandparents, the court may not believe that taking them away from this life is in their best interests—regardless of the parent’s circumstances. Under Georgia law, the following will be taken into consideration:
- Can the grandparents show the child will suffer physical harm or long-term emotional harm if the biological parent were to receive custody?
- Are the grandparents able to show that awarding custody to the grandparents best promotes the happiness and health of the child?
- Are the grandparents and parent(s) willing to consider shared custody?
- If the parent receives legal custody of the child, will the grandparents have visitation rights?
Grandparent visitation rights are likely to be granted when it can be shown that harm to the grandchild is reasonably likely because:
- The grandchild resided with the grandparent(s) for six months or more
- Financial support for the grandchild was provided by the grandparent(s) for at least one year
- The grandparent(s) engaged in regular childcare or visitation with the grandchild before custody filing by the parent
- Other circumstances exist that would result in emotional or physical harm to the grandchild if the grandparents were not allowed to maintain visitation with the child.
A grandparent who has been raising a grandchild for a significant length of time obviously meets all the criteria for visitation—and may also meet the necessary criteria for obtaining legal custody of the child. A grandparent who did not have legal custody—but who has raised their grandchild for many years—can file for legal custody of their grandchild. Barring a court order that awards legal custody or visitation to the grandparent(s), the grandparents may have little recourse if the parent decides to take the child—other than hiring a lawyer and filing for custody.
This issue was addressed by the Georgia Court of Appeals in 2015 in Bell v. Taylor. A child was born to unmarried parents in 2008. In 2011, both parents granted temporary guardianship of the child to the maternal grandmother. The father had virtually no involvement with the child for the first few years, and was, in his own words, “partying a lot.” In 2013, when the child was 5 years old, the father sought custody of the child.
While the grandmother responded to the petition, the child’s mother did not. The court decided it was not in the best interests of the child to be removed from the only home he had known in his life. Primary custody was awarded to the grandmother, with visitation rights being given to the father. The father appealed the decision, and eventually, the appellate court reversed the trial court’s decision, awarding custody of the child to the father.
The burden of proof in a grandparent custody case is high; the grandparents must clearly show that the health and welfare of the child are best served by remaining with the grandparents. The court must agree with that assessment, as it is generally believed to be in the best interests of the child to have regular contact with biological parents.
Contact Our Atlanta Child Custody Lawyers
At Hobson & Hobson, P.C., our Atlanta child custody attorneys know that parent and grandparent custody cases are complex. However, we fight hard to protect your family and your parenting rights at every turn.
If you are considering seeking custody of a child, we can help. We work to help you through this difficult and emotional process, so you can move forward into the future you deserve.
Attorney Sarah Hobson at Hobson and Hobson, P.C. are powerful advocates for those who fight for better futures for those going through divorce and custody law matters.