Grandparents in Custody and Visitation Cases

Posted on Sep 13, 2019 by Katie Carter

At this point, very little that I see is something that I’m seeing for the first time. Most of the time that’s good, because it means I have a level of familiarity with a lot of different scenarios, and I at least have some experience to draw on, even if the combination of circumstances is unique in each case.

Sometimes, though, even when things are NOT new or unusual to me, I still find it surprising. One of those things is when my client tells me that her parents were abusive – and then, in the same breath, that her children are visiting with them or stay with them over the summer, or something to that effect.

I’ve heard it many times, and each time it surprises me. I always ask more questions. What do you mean? What kind of abuse? Why would you let your children go there? Is there nowhere else? Are you worried for your children?

Usually, they give me some sort of version of, “Well, they aren’t abusive to the grandchildren, just to me.” Well, that doesn’t make sense to me. Why would that be? How do you know? Not much shocks me anymore, but this always does.

Now, I understand families are complicated. I understand loving even someone who has wronged you. I understand some of the psychological complications caused by trauma and abuse that can cause an abused person to allow the abuse to continue.

What I don’t understand is not saying enough is enough when it comes to your children. I think this is problematic in a divorce or custody scenario in a number of ways but, most of all, because your children should feel like, no matter what’s happening at home, mom and dad will protect them to the absolute best of their ability.

Grandparents in divorce and custody cases

This brings me to the subject of “grandparent’s rights” in divorce and custody cases. To put it simply, grandparents have none – unless you basically hand them to them on a silver platter.

In a normal situation – mom, dad, children – where mom and dad have custody, grandparents would have very little success petitioning for time on their own. The standard for mom and dad to argue for custody is best interests of the child, meaning that they have to use the ten best interests of the child factors to argue about what kind of custodial arrangement will be best for the child(ren) involved.

In the case of grandparents, they don’t get to use the best interests of the child standard. They have to use a higher standard – actual harm. Basically, they have to show that, without whatever arrangement they’re asking for, the child would suffer actual harm. That’s super hard to show.

That doesn’t mean that, normally, grandparents don’t have time with children. Often, as you know, they do.

What happens when mom and dad disagree about the role of grandparents in the children’s lives?

Normally, with grandparents, everything is fine. No one really puts up too much of a stink about a grandparent being involved in a child’s life.

But… that’s not always the case, is it? (Nothing is always the case!) Sometimes, grandparents are the bad guys. They can be abusers, either of the children or the grandchildren, or they can have substance abuse problems or other issues. Sometimes, it’s less obvious; the grandparents can just be detractors, especially in the case of a divorce or custody case. One parent probably isn’t going to be all that supportive of the grandparent’s role in the children’s lives if he or she feels like that grandparent is using his or her platform to speak badly about the other parent in front of the children. There can be a lot of reasons why parents would want to keep grandparents out of the children’s lives.

When both parents agree that the grandparents shouldn’t be involved

When both parents agree about the grandparent(s), it’s easy. They can put in their custody order or their agreement that the grandparent(s) in question won’t have time with the children, or that their time will be limited or supervised.

If the parents agree, that’s their prerogative. Easy peasy, and it’s done. The judge will enter it and not question it.

When only one parent believes that the grandparents shouldn’t be involved

It’s a little harder when only one parent believes that the grandparents shouldn’t be involved. In that case, though that grandparent would still have significant difficulty in getting specifically defined custody of or visitation with the child, that doesn’t mean that the other parent couldn’t designate a portion of his or her time to that grandparent.

Basically, if dad wants his mom to have time, he can use some of the visitation/parenting time he receives, and let her see the child (alone or under his supervision) during that time.

When do grandparents win custody?

It happens pretty seldom, and usually when I see it happen is when a parent has GIVEN a grandparent custody and/or visitation on their own. I’ve seen it happen in cases where parents were unstable for a period of time, and, as a result, gave the grandparents custody – usually, in these cases, it was intended to be temporary. But once you give it to them, especially if the grandparents don’t give custody back at the end of the period, you can find yourself up a creek without a paddle.

It’s a frustrating catch 22; you want to have some help when you’re going through a rough patch, but, obviously, you don’t want your child’s grandparents to feel like they are entitled to them take on –and fight you for – custody of your child. It can be a long battle, in some cases. In fact, some of the most expensive cases I’ve seen have been between parents and children or ex-daughters in law.

If your parents were abusive to you

So, yeah, it should probably go without saying – if you’ve got abusive parents, they’re probably not who you should look to for child care. Even though child care doesn’t translate into increased rights, if they were abusive to you… Well, I think it goes without saying that you should probably supervise any contact between your children and your parents or your former in laws.

Likewise, they should probably not be your contingency plan in the event that you ever need a little extra help, particularly if you’re going through a rough patch.

Probably also a good idea to deal with your trauma with a licensed mental health professional who can help you ensure that you deal with it in a way that is productive and healthy, and allows you to be the best parent possible.

For more information about grandparent’s rights or to discuss the role your parents (or your former in laws) have with your children, give our office a call at 757-425-5200.