Do Grandparents Have Custody Rights?

Reviewed by Carina Jenkins, J.D.

Divorce, death, or estrangement can pose uncomfortable situations in many ways. Trying to maintain a relationship between grandparents and grandchildren, when the adult children have become estranged from their parents, is never easy.

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That’s why it’s good to know that the older generation in the family may be able to ask a court for grandparent custody rights or visitation rights.

In general, grandparents' rights regarding custody aren't automatic under the law. Unlike parental rights, which give parents the right to contact or claim custody over their children, grandparent rights don't include the automatic presumption of contact or guardianship.

In some states, grandparents can sue for visitation or other forms of contact with their grandchildren. The specific rules vary by jurisdiction.

Do Grandparents Have Any Parental Rights?

Grandparents don't have the same parental rights as a child's legal parents or guardians. The law favors parental rights over any possible grandparent rights.

This means grandparents typically can't ask the courts for access to their grandchildren under most circumstances. 

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Do Grandparents Have a Legal Right to See Their Grandchildren?

Grandparents don't typically have a defined legal right to see their grandchildren. In some situations, they can petition the court to force parents to allow contact, but this is only allowed in specific, well-defined circumstances.

Some situations when a grandparent might successfully petition for the right to visit with grandchildren include:

• When one or both parents are deceased
• When the parents of the child have filed for divorce or obtained a divorce
• When the parents have lost legal custody of the child
• When the child has been born out of wedlock to parents not residing together

If the parents are both alive and the child lives with them, courts generally recognize the parents' right to restrict or prohibit contact with any specific person outside their immediate family, including grandparents. Parental rights are considered to supersede the rights of a grandparent in this case.

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Do Grandparents Have the Right to Visitation?

Visitation is the legal term for a court order that requires a parent or guardian to allow access to their child by someone who doesn't have legal custody of the child. In most cases, visitation is ordered for the other parent in cases of divorce, separation or estrangement. 

Grandparents generally don't have the right to visitation with grandchildren who are part of an intact nuclear family that includes both parents. If one parent is absent, grandparents related to the other parent may petition for visitation rights.

During a divorce case, the grandparents may be able to join the custody case of their adult child and petition for visitation rights along with that parent. Only some states allow this, so jurisdiction matters. Things that might influence the court's decision include:

• Whether the child has lived with the grandparent prior to the custody case 
• The children's statements about whether they want to visit with or live with the grandparent
• The parents' ability to provide a stable home environment

Many states have laws prohibiting grandparents from filing for custody and visitation in situations where the parents are alive and living together with the child. 

Just because a grandparent has the right to file for visitation doesn't mean they'll get it. Courts in every state are required to give a strong preference to parents and assume most parents are acting in the best interests of the children.  

Do Grandparents Have to File for Custody?

Because grandparent rights aren't automatic, grandparents must file for custody to get guardianship in situations where the parents are unavailable or unfit to raise the child.

If the parents are deemed legally unfit or are deceased, the grandparents can petition the courts for custody as an alternative to having the child sent into foster care. Courts often prefer to give custody of the child to close family members in cases where the parent can't care for the child. In most cases involving child custody, the best interests of the child are considered, so the grandparents should make a case that shows they're responsible, caring guardians capable of raising the grandchild.

Parents who can't take care of their children may also grant legal custody to a grandparent through the courts. In this situation, the parent gives up their own custody rights to the child. The court order for the relinquishment of custody may include visitation rights for the parent, but the grandparent becomes the guardian of record for the child at that point, and the child lives with the grandparent. In many cases, both parents will need to agree to sign over custody.

Individuals seeking custody of a grandchild should discuss their specific situation with an experienced family law attorney.