BEFORE READING:  Every situation is unique.  For advice about a specific situation, you should contact an attorney.

Prior to 1996, grandparents and great-grandparents had a difficult time obtaining custody or visitation privileges with their grandchild. However, courts and the legislature are now more willing to allow grandparents standing to sue for custody or visitation with their grandchild. 

To file for any type of custody or visitation with your grandchild, you need to have standing.  If you have standing, the court will recognize your right to file a petition.  Otherwise, the court will dismiss your petition before it even hears your case.

STANDING: THE RIGHT TO BRING A LAWSUIT

As a grandparent, you may be able to obtain primary custody, partial custody, or visitation with your grandchild or great-grandchild.  The following are definitions of the different types of custody:

                   PRIMARY PHYSICAL CUSTODY:  Primary physical custody is the right to have actual possession of the child.

                   PARTIAL PHYSICAL CUSTODY:  Partial physical custody gives a person the right to take possession of a child for an agreed upon or ordered amount of time.  

                   VISITATION: Visitation is the right of a person to see and visit a child, but it is not a right to take actual possession of a child.  

STANDING FOR CUSTODY AND VISITATION   

Before 1996, the law only gave standing to grandparents if the grandchild lived with them before they filed a petition for custody or visitation.  It is no longer necessary to show that the grandchild lived with you.  The court will now hear any petition for custody or visitation brought by a grandparent.

WHAT YOU MUST PROVE FOR CUSTODY OR VISITATION WITH YOUR GRANDCHILD

Once you pass the standing requirement for custody or visitation, you must still prove your case to the court.  The type of proof that the court will require depends on whether you are suing for primary custody, partial custody, or visitation.

PRIMARY PHYSICAL CUSTODY 

To win primary physical custody of your grandchild, the court must find that:

         1.  It is in the best interest of the child to NOT be in the custody of either parent, AND

         2.  It is in the best interest of the child to be in your custody.

To win on these factors in court, you should be prepared to argue:

          1.  You have genuine care and concern for your grandchild, AND

          2.  Your relationship with the child began because the child's parent or the court itself allowed it to begin, AND

          3.  You either acted as your grandchild's parent OR you believe it's necessary to act as your grandchild's parent because your grandchild is being abused, neglected or is witnessing substance abuse or mental illness.

If you can prove that these factors exist, you MAY win primary custody of your grandchild.

PARTIAL CUSTODY OR VISITATION

If you ask the court for partial custody or visitation, you need to prove that:

           1.  Partial custody or visitation with you would be in the best interest of the child, AND

           2.  The partial custody or visitation would not interfere with the parent-child relationship.

Thus, you do not have to justify taking the child away from his/her natural parents as much as if you tried to obtain primary physical or legal custody.

 SPECIAL RULE WHEN A CHILD'S PARENT IS DECEASED

There is a special rule that states if one of the child's parents has died, you as a grandparent have automatic standing to ask the court for partial custody or visitation.  If this is your situation, you need to prove:

           1.  Your request would be in the best interest of the child, AND

           2.  Your request would not interfere with the parent-child relationship.

In making a decision, the court will take into account your relationship with the grandchild before you file for custody under this part of the statute.  Therefore, if one of the child's parents is deceased, it will be easier for you to convince the court that you should be given custody or visitation.