How to Understand Grandparents Rights

Grandparents rights can be a tricky concept to understand. Many grandparents interpret the very name as protecting rights that don't necessarily exist, and believe that they have some kind of legal power to intercept their grandchild's lifestyle simply because they disagree with it. In reality, grandparents rights are a very complicated and limited idea; here is how to understand grandparents rights:

Difficulty: Moderately Challenging

Instructions

1. What are Grandparents Rights?
   
   Grandparents rights are a very new idea; there is no constitutional protection for grandparents, and very little legislation, of which all is very recent. In a nutshell, they are the rights of the grandparents of a grandchild, for whom the grandparents played a very important and irreplaceable role. For most states, this refers to grandparents who took in their child as a single parent, along with their grandchild, for a significant period of time; those whose child – the parent of the grandchild – have passed away; and those who have given their home to the grandchild for at least a year. Grandparents rights are very limited, and in fact are continuing to be limited as more states realize that by giving grandparents certain rights, they are infringing on the rights of the parents – and the rights of the parents always outweigh those of the grandparents.

2. What Grandparents Rights are Not
   
   Many make the grave mistake that grandparents rights somehow grant the grandmother or grandfather the right to take over custody of a child, the right to visitation with the child, or the right to intervene in the child's life simply because the grandparent disagrees with the parents' choices. This certainly isn't, and never was the case. The parents of a child will and should always have the final say in what happen with their child; it is the parents' constitutional right (and remember, grandparents have no constitutional rights to their grandchildren). A grandparent cannot sue for custody just because their child passes away and the grandparent disagrees with the surviving parent's choices; a grandparent cannot force visitation with their grandchild simply because they don't feel the parents are giving them enough time with their grandchild. If you believe that you can enforce grandparents rights under these circumstances, you are very wrong. You are not an authority over your grandchild's parents, and you will not be treated as such.

3. What Grandparents Rights Can Do For You
   
   These are the limited circumstances in most states which a grandparent may enforce any right over their grandchild:
   
   If the grandparent's child (the parent of the grandchild) passes away, the grandparent may be able to enforce limited visitation rights.
   If the grandchild lived with the grandparent in the year prior to the lawsuit being filed, for a set amount of time (anywhere from 6 to 12 consecutive months, depending on the state) then the grandparent may be able to sue for limited visitation rights.
   In some states, grandparents may seek visitation rights if the grandchild's parents are currently in the process of separating or divorcing, or are already separated or divorced.
   
   Keep in mind that some states do not grant all of these rights to grandparents.

4. Grandparents Rights & Custody
   
   A common misconception about grandparents right are some form of custodial rights to the grandchild that can be enforced either upon the death of the grandparents child, or the grandparents' disagreement over the way the grandchild is being reared. No state will ever take away the custodial rights of either parent for either of these reasons; the child will always be placed with the surviving parent in the event that one parent is deceased, and grandparents cannot contest this – even if the surviving parent was not actively involved in the child's life prior to the other parent passing. Likewise, grandparents can never take custody of their grandchild simply because they feel the grandchild is not being reared in a manner that they feel is best appropriate. Remember, the parents have a constitutional right to parent their children; grandparents do not have any constitutional rights over their grandchildren.
   
   However, in the event that one or both parents pass or are deemed unfit, grandparents can step in and apply for custody. Grandparents are not immediately granted custody based on either of these events happening, though. In the event that both parents pass away, and a legal guardian is appointed to the child(ren) that is not the grandparents, the grandparents cannot sue to take custody away from the legal guardian; this would interfere with the parents' right to parent their children. But in the even that no legal guardian is named, a grandparent could step up to take custody and the likelihood is that this custody would be granted. In the event that both parents are deemed unfit, grandparents are able to step in and apply for custody, but must follow the same proper procedure that anyone would have to follow to take over custody in these situations.

5. In a Nutshell
   
   So keep in mind that grandparents right, in states where they are in effect, only apply to a grandparent's right to visit with their grandchild on a basis decided either by the surviving parent in the matter of a parent's death, or in the situations outlined above. In no circumstance is a grandparent ever given the right to step in and take over custody of a grandchild simply because they disagree with the grandchild's rearing, or because their child, who is the parent of the grandchild, passes away – custody will always go to the surviving parent first, barring extenuating circumstances like the parent's lack of desire to take custody. Grandparents cannot overrule the parents' decision for a legal guardian in the event that they both pass, but can apply to take over custody of a grandchild in the even that both parents pass, and no legal guardian was named by the parent.