Grandparents’ rights: custody and visitation

I have come across situations recently where parents were surprised by legal stances the grandparents (their own parents) took regarding their children. In one situation, a young parent went to college to make a better life and was not at a point where he/she embraced the obligations of parenthood. The parent and grandparents agreed that her young child would stay with the grandparents for extended periods of time with the understanding that the child would return to the parent once school was completed. Another situation involved grandparents, who had liberal visits with the grandchild, threatening litigation to ge more visits when the child was grounded for a time.

Common to both situations was the shock by the parents over the standing they discovered the grandparents had to solidify their position in the child’s life legally. This information is not intended to take the side of parents or of grandparents, but simply to educate people about unintended consequences of decisions they make regarding their children and grandchildren.

Kentucky, and many other states now have provisions for establishing a de facto custodian standing by persons, often grandparents, who provide extended care for a child. The exact criteria for Kentucky can be found in KRS 403.270. Basically, if a person other than a parent is the primary care provider and financial supporter of a child for a certain amount of time, courts are to give them equal consideration as the parent in custody determinations. There are more complicated aspects to this law and it interacts with other custody laws, but the basic idea is that if a parent leaves a child in the care of a grandparent (or other person) for six months (children under 3 years of age) or a year (children 3 or older), then that care provider may gain rights to that child that equal that of the parent. It is unlikely that even written agreements to the contrary would alter that standing, and verbal agreements certainly would not prevent this legal standing from coming into being.

Similarly, Kentucky and many states have statutes that appear to grant visitation rights to grandparents. In Kentucky, the statute is KRS 405.021. This law turns out to be weaker than the de facto custody law because of U.S. Constitutional concerns so it is less likely that a grandparent could get a court to force visitation with a grandchild over the reasoned objection of the parents. However, it does open the door to grandparents filing suit in court which can be an expensive and conflict ridden experience.

For parents contemplating using someone, like a grandparent, for extended child care, you should consult with a family law attorney regarding the specifics and the risks involved. For grandparents who are care providers and concerned about losing that status and the wellbeing of your charge, consult a family law attorney with the specifics to see what standing you may have. Although potential legal actions exist, it is best to work out visits between grandchildren and grandparents with reasonableness and the interests of the child in mind.

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