1960s comedic star Sam Levenson famously said: “The reason grandparents and grandchildren get along so well is that they have a common enemy.”
Of course, Levenson was trying to be funny. But sometimes, the grandparent/parent/child dynamic isn’t very funny. When parents are unable or unwilling to care for their children, grandparents often step in. Sometimes it’s informal—picking up the slack and checking in a little more often. Sometimes, it involves a more formal arrangement.
If you’re a grandparent concerned about the welfare of your grandchildren—or a parent in a tough spot—read on. We can help.
Even if your family isn’t in crisis, the grandparent-grandchild relationship is critical. Deb Link of the Ascend Family Institute has collected extensive research on the subject, finding that strong grandparent-grandchildren relationships may result a slew of benefits including better mental health, pro-social behaviors, and even school engagement for the children. It’s also associated with lower risk of dementia for the grandparents. (It’s perhaps worth noting that one possible drawback of a strong grandparent-grandchild relationship is some evidence that it contributes to childhood obesity. This will not come as a surprise to any of us who had too many cookies at grandma’s house.)
There are a few different scenarios in which grandparent involvement may include legal proceedings. The scenarios described below are based on Minnesota statutes, but statutes are similar across most states because they are governed by a U.S. Supreme Court case.
The law says that you have the right to raise your own children. However, there are circumstances in which you may forfeit that right. In many of these cases, grandparents step in.
When a grandparent assumes full legal custody
A grandparent may take custody of a minor child(ren) if the parent is not available to care for the child. This means taking guardianship and is akin to stepping into the shoes of the parent. Custody does not terminate the rights of the parent, but it does grant the grandparent the authority to make decisions on behalf of the minor child, including those related to medical treatment and education. It also makes the grandparent financially responsible for the child (though the parent may still owe child support).
Legal custody can be temporary or permanent. And it’s not limited to grandparents. Any third party (e.g. adult sibling, family friend, aunt or uncle) can file for a transfer of custody. Whether custody is awarded depends on a few factors. In most cases, the child needs to have already lived with the grandparent or third party for a period of time before custody will be awarded. If not, there needs to be a very strong reason why custody is warranted (e.g., a parent whose lifestyle seriously threatens the wellbeing of the children).
When a grandparent seeks visitation
While legal custody is theoretically open to any third party, grandparent visitation is specific to grandparents. Perhaps the most important thing to know about grandparent visitation: For visitation rights to be awarded, there must be an open court case in the family (e.g. the parents are getting a divorce or undergoing a custody battle). Without an open court case, a grandparent cannot demand visitation rights. No matter how frustrating your daughter-in-law is or how tasty grandma’s cookies might be.
When you’re planning your estate
Even if your family isn’t in the midst of a court battle or a crisis, it’s worth thinking about your current and future role as a grandparent. Many parents use a Will to designate a custodian if the parent were to die while their child(ren) were still minors. This designee is often a grandparent. Talk with your family members about their plans and ensure that everyone is on the same page, so as not to add an unpleasant surprise to what will surely already be an unpleasant scenario.
Above all, the court (and, we hope, all family members) will prioritize whatever outcome is in the best interest of the children. If you’re wondering about grandparent involvement, an experienced family law attorney can advocate on your behalf and make recommendations specific to your situation. It doesn’t matter which side you’re on—we’re on your side.