Grandparent and Non Parent Rights in Custody Cases Part 2

Posted on Oct 28, 2019 by Katie Carter

On Friday, we talked about custody and visitation cases where a grandparent – or other non parent – petitions the court for custody and/or visitation. The cases I described on Friday are otherwise normal custody cases, where mom and dad share custody and visitation of the minor children in question.

In those cases, grandparents (or other nonparents petitioning for custody and/or visitation) have to meet a standard beyond the typical “best interests of the child” standard. They have to show that actual harm – specific, certain, measurable harm – will befall the child because of their lack of involvement. It’s really hard to do, and these grandparents often lose their cases.

But there are other types of grandparent and non parent custody cases. Specifically, there are cases where mom and dad voluntarily gave up custody to a grandparent or other non parent for a period of time, and then want it back.

Why would a parent give up custody?

Parents give up custody for all sorts of reasons, but the most common reason I see is drug or alcohol addiction.

It’s hard to describe a typical scenario, because each situation is so completely different. But, often, in these cases, the parent’s addiction has reached a level that she feels she can’t adequately care for the children. Instead of continuing to try to parent through the addiction, she takes some time out to get the help she needs to get sober again.

I’ve also seen it happen in cases where the parents are moving around a lot and don’t have a stable home for the child. A mom might choose to have the children live with grandma for a period of time so that they can stay enrolled in one particular school system until the parent finds a more permanent arrangement.

There can be lots of reasons, but the impact is the same: giving up custody, even if it’s intended to be temporary, can create a lot of problems.

It happens a lot. In general, I think it’s safe to say that it’s always a bad idea to give someone else custody of your child, even if you intend that the arrangement will only be temporary. (In fact, in almost all of these cases, the situation was intended to only be temporary!) Whenever you voluntarily relinquish custody to someone else, you create a much, much more difficult climate for yourself in which to face a custody case later on down the line.

Before you sign over custody to anyone else, talk to an attorney about your choice, any alternatives you might have, and how to make your “temporary” arrangement as ironclad as possible. It may not be as easy as you think it should be to pick back up where you left off, especially if your child’s new custodian opposes a return to the former custodial arrangement.

What happens if I sign over custody to a grandparent?

Once you’ve given custody to a grandparent, you’re on equal footing with them in court. You’ve removed the “actual harm” standard, and instead have placed yourself on equal footing with the grandparent. Now, you have to use the “best interests of the child” standard, which is much more egalitarian.

Now, grandma can participate in the litigation the same as you. She can oppose your petitions for custody and visitation and argue for her own proposed custodial arrangement. If there’s a Guardian ad litem, the GAL will consider the strengths and weaknesses of both of you in making a recommendation to the court.

If I gave up custody, will the judge hold it against me?

This is such a hard question to answer. I’m inclined to say “no,” but I don’t want you to think that means that you’ll get custody back. You may or may not.  It’s not really a question of “holding it against you”.  Of course, your reasons matter — giving up custody because you’re laboring under addiction is one thing (especially assuming you’re able to get sober), but giving up custody to move in with a boyfriend, for example, is probably not the smartest move you could make.

A custody case isn’t about mom or dad, or, in this case, mom, dad, and grandma. It’s about the child involved, and what’s in his or her best interests. Based on the fact that you gave up custody voluntarily, I think it’s safe to assume that the judge will wonder whether you can give the child the stability and continuity she needs.

Sure, the judge understands that it’s a good choice to not expose your child to your drug or alcohol addiction, but it doesn’t necessarily follow that the judge will also feel that it’s a good idea to return the child to your care immediately — or even ever.

Other factors matter, too. The bond the child has developed with the grandparent, for example, and the ease with which you can continue to coparent. If the child would have to move or switch schools, that’s a consideration, too. These cases are complicated, costly, and often very time consuming. There are a lot of factors involved, and it’s a complicated weighing of advantages and disadvantages.

Will the judge take grandma’s bad behavior into consideration?

The answer here is the same as the one above. It’s really not so much a question of you, dad, or grandad, or your behavior and motivations. It’s about the child, and assessing what kind of custodial arrangement is in his or her best interests.

To the extent that grandma’s bad behavior has an impact on the child, or an impact on the coparenting relationship (which also impacts the child), her bad behavior would be taken into account.

So, too, would a lot of other factors: her health, for example. If she’s old and somewhat infirm (hey, she is a grandma!) that can play in your favor, especially if, by comparison, you are young and healthy and able to keep up with the active needs of the child.

It’s complicated. There are a lot of factors. Her bad behavior is relevant, but mostly to the extent that it affects the child’s best interests.

Everything from this point forward depends on whether returning the child to your care or keeping the child with grandma is, in the judge’s opinion, in the child’s best interests.

Can I introduce evidence, witnesses, or experts to show that grandma having the child is not in her best interests?

Of course. This is now a custody case, just like any other. You can always introduce your evidence, bring your witnesses, or question your experts to show why the custodial arrangement you favor is in the child’s best interests.

What’s the hardest part of these grandparent custody cases?

The hardest part of a grandparent custody case is the fact that judges are often loath to disrupt the status quo. If the child is with grandma and doing well, it’s hard to justify uprooting her yet again to place her back in mom’s care.

The judge will look very carefully at the child, but particularly at her performance in school, her involvement with extracurricular activities, and the extent to which these things would change if a different custodial arrangement were ordered. For a child who is doing well and seems happy and adjusted, it may be an even steeper uphill battle.

Do I need an attorney for a grandparent custody case?

Almost certainly, yes. These cases are complicated, and often involve a lot of moving parts.

If your case starts in the juvenile court (as it likely will, as a modification of custody and visitation), keep in mind that you can appeal to the circuit court, too, should it not end the way you wish it would. Still, when you’re juggling evidence, witnesses, experts, Guardians ad litem, and all the custody factors, you’ll want an attorney on your side.

For more information, or to schedule an appointment with one of our licensed and experienced Virginia custody attorneys, give our office a call at 757-425-5200.