In the United States, more than 7 million grandparents have at least one grandchild living under their roof. Significantly, more than a third of these grandparents—2.5 million of them—are the primary caregiver for their grandchildren.
Therefore, grandparents’ custody rights impact millions of families across the nation, and it’s important to understand that there are dramatic differences between the states, and there are also differences between visitation and permanent custody.
Custody v. Visitation, Custody v. Adoption
In layman’s terms, visitation and custody are often used interchangeably. However, visitation usually refers to the time spent with a child, whereas custody refers to when a parent cares for a child who remains in their physical presence (i.e., lives with them) and can make legal decisions regarding the child’s care and wellbeing. While that seems to be a bright-line rule, some states may consider a child’s overnight stay at a noncustodial parent’s house as “visitation.” Given the confusion over these terms, many states are replacing them with new concepts such as “parenting time” or a focus on legal decision-making.
When it comes to grandparents’ rights, some states distinguish between those legal terms just as they do for the parents. (For this blog, we will address both.)
Also, even if grandparents have physical custody of children, parents may still have legal authority over their children. To terminate the parents’ parental rights, grandparents must complete the formal adoption process.
Grandparents’ Custody
While the exact requirements will depend on the state, grandparents usually don’t get responsibility for the children’s custody (i.e., ongoing physical care or legal decision-making authority for the children) unless the parents are not able to do so. For example, grandparents might get custody if a parent has an ongoing drug problem or there’s abuse in the home.
At that point, the court must decide if the grandparent should act “in loco parentis,” act as if they are the child’s parents.
In Arizona, a grandparent (or any petitioner other than a legal parent) can only get custody of a child if:
a) It would be significantly detrimental to the child to be in the care of either legal parent who wishes to keep or acquire legal decision-making;
b). There’s no existing court-approved order that has allocated legal decision-making or parenting time (unless the order puts the child at risk); and
c). The child’s parents are unmarried (or have a pending dissolution), or one of the legal parents is deceased.
Grandparents’ Visitation Rights
If grandparents aren’t seeking physical or legal custody of grandchildren, but instead are just trying to attain regular access to the children, they’re likely pursuing visitation.
Most states agree that grandparents should be able to visit their grandchildren, but the states differ on how this principle should be applied.
Following the Supreme Court decision Troxel v. Granville, states can give grandparents visitation rights if it is in the “best interests of the child.” However, under Troxel, if the parents choose to refuse the visitation, the courts need to recognize that parents usually have made that decision based on their beliefs as to what is in the best interests of their child. Therefore, courts shouldn’t grant visitation if it easily overrides the parents’ decision of what’s best with a court’s views.
Under Arizona law, a court can grant a grandparent visitation if the court determines that visitation would be in the best interests of the child and if any of the following applies:
1. If one of the legal parents is deceased or has been missing for at least three months;
2. The child was born out of wedlock, and the child’s legal parents are not married when the time the petition is filed; or
3. The parents’ marriage has been dissolved for at least three months.
Additionally, if the grandparent is seeking visitation rights in loco parentis, they may also prevail if there is a pending proceeding for the parents’ dissolution of marriage or legal separation.
Meanwhile, in Arkansas, the law provides grandparents should only be granted visitation over the parents’ objection only when the grandparents:
- have been the full-time caregiver of the child for at least six months,
- in regular contact with the child for at least 12 months, and
- in light of other supporting facts.
Grandparents’ Best Hope for Visitation is (Probably) the Parenting Plan
When possible, grandparents should have the parents voluntarily agree to include them in a court-approved parenting plan. (Some state statutes specifically provide for this.) Plans can specify the grandparents’ time, place, and methods of interaction, just as the plans do for the parents.
For grandparents involved in the children’s day-to-day care, issues that should be addressed include:
- Should grandparents’ homes be included as the children’s approved residences?
- Should the grandparents be able to pick up the children from daycare or school? Can they provide other regular transportation (e.g., carpools)?
- If grandparents provide housing, meals, transportation, or other care, should that be reflected in child support? (In Florida, grandparents must pay for children’s expenses during visitation.)
- Should the grandparents be emergency contacts?
Ironically, presenting questions like these may increase parents’ willingness to include the grandparents in a parenting plan. Because it’s not until such issues are discussed that parents may realize that, without some inclusion of third parties’ rights and responsibilities, they can violate the court-ordered parenting plan with something as innocuous as having the kids sleep at Grandma’s when they were on an overnight business trip.
Christa Banfield is a family law and divorce attorney working in Stewart Law Group’s Gilbert office. The firm has helped many clients navigate the legal complexities of divorce, child custody, spousal support, property division, parental visitation, and child relocation disputes.
