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Grandparent's Rights

In some states, laws allow grandparents to sue for access to a grandchild. Grandparents typically have the right to request that the court allow them access to their grandchild if:

the parent who is the child of the grandparents is in jail;
the grandchild's parents are divorced or living apart;
the grandchild was abused by one of her parents; or
the grandchild lived with the grandparents for a period of time before the suit was filed.

The court will grant the grandparents' request if they are eligible and access is in the best interests of the grandchild.

Where both of the parent's rights are terminated, the grandparent generally has no right to request to see the child. Grandparents may not sue for access when the grandchild's parents are married and living together. While the parents are married, they have the right to limit or deny grandparent's access to the grandchildren.

SIDEBAR: Grandparents can be granted custody of a grandchild if neither parent is able to raise the child. The court factors in the grandparent's age, health, and ability to care for a young child. If placing the child with his grandparents is in the child's best interest, they will be awarded custody.

Can I get custody of my grandchildren?

Yes. If the children have been living with you for an extended period of time and you have had actual care, custody and control over them, the court may grant you custody.

SIDEBAR: The grandparent must file a petition requesting custody of the grandchildren with the court. If there is an ongoing divorce, the petition would be filed in the same court that is considering the divorce.

TIP: Legal custody is important because a formal custody order allows the grandparent to enroll a child in school, provide health insurance, make medical treatment decisions and apply for aid such as food stamps. Unless the grandparent has legal custody, he is unable to do any of these things.

If I get custody of my grandchildren, have my daughter's parental rights been terminated?

No. Your daughter and the children's father are still the legal parents of the children. However, because you have custody, the parents no longer have the right to make decisions affecting the children. You have authority over their education, medical care and treatment and any other aspects of the children's life.

My 16-year-old daughter has had a baby. Am I legally required to care for and support the baby?

Yes. Some states have enacted "Grandparent Liability" laws, which require the parents of teenaged mothers and fathers to support their grandchild. The laws require both sets of grandparents to financially support and provide medical care to the grandchild born to the minor(s).

SIDEBAR: The grandparent's financial responsibility to the grandchild lasts until the mother or father is 18 years old.

SIDEBAR: The court can order grandparent support at the request of the mother, father, or the state agency involved in obtaining assistance for new mother and baby.

Do I have a constitutional right to see my grandchildren?

No. The only rights you have are those given to you under state laws. All states have laws allowing for grandparent visitation, but the circumstances that permit the court to order visitation vary from state to state. For instance, you may have no rights to visitation if the grandchild's parents are not divorced.

Can relatives (other than grandparents) petition for visitation with a child?

Yes. Laws may allow aunts, uncles and siblings access to a child in certain situations.

TIP: Where the law allows, non-relatives with close ties to a child can petition for visitation if the child's emotional well-being would be enhanced by seeing the relative.

My daughter's parental rights were terminated and my grandchild has been adopted. Can I get visitation with my grandchild?

No. Although your "grandparent's rights" were not legally terminated, the effect of the parental termination means you no longer have any rights to your grandchild. Laws prohibit you from petitioning the court for visitation once a new family has adopted your grandchild.

TIP: Laws in some states allow grandparents to petition the court for visitation if a relative, as opposed to non-family member, adopts the child after parental rights were terminated.

My son and his wife refuse to let us see our grandchildren. If we sue for visitation, can we get an order from the court requiring our grandchildren to see us?

No. Since the parents of your grandchildren are married, there is no reason for a court to interfere in the parent's decision to keep you from your grandchildren. Parents are the sole authority for what is in the "best interests" of their children where the family is intact and there are no abuse or neglect allegations.

My daughter is terminally ill. She and her children have been living with us. Can we be appointed our grandchildren's guardians?

Yes. In situations where parents are chronically ill or dying, laws allow for "standby guardianships." The guardianship does not take effect immediately. Instead, when your daughter dies or feels unable to care for her children, you will become the grandchildren's guardians.

I am taking care of two small grandchildren and my financial situation will not allow me to keep them for much longer. What type of government assistance can I receive?

There are several programs that may be able to assist you as the primary caretaker of your grandchildren. You should look into:

Social Security dependent benefits – if you have worked, your Social Security benefits may be extended to grandchildren under 18 who are living with you.
Supplemental Security income (SSI) – SSI provides assistance to low-income children. You can apply on behalf of your grandchild.
Medicaid – government medical care is available for your grandchildren if they qualify for SSI or have substantial medical needs.
Temporary assistance to needy families (TANF) – this federal program allows you, your grandchild or both of you to receive benefits if you qualify. Information is available on the U.S. Department of Health & Human Services website at www.acf.hhs.gov.

TIP: For questions concerning dependent benefits, SSI and Medicaid, go to the U.S. Social Security Administration website at www.ssa.gov.

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