Do Grandparents Have Any Child Custody Rights in a Divorce?

As parents, we look forward to the day when our children become parents themselves and we become proud grandparents, spoiling our grandchildren and delighting in their personalities and growth. A divorce, however, can alter grandparents’ access to their grandchildren, especially if the dissolution is not amicable. If a divorce is imminent, grandparents are likely to be concerned about the welfare of their grandchildren. But as grandparents, do you have any custody rights in a divorce?

Florida law does not allow grandparents the right to be granted custody of their grandchildren, citing a parent’s constitutional right to raise a child without outside interference. This right was recognized by a state court decision in 1998, although it did not affect those grandparents with custody rights before the decision was handed down. If a parent wished to modify the court order that granted custody to the grandparent, that parent had to, and still must, demonstrate substantial or material changes in circumstances. Further, although courts do not have the authority to grant grandparent visitation/custody, parents have the ability to enter into agreements providing grandparents with certain visitation or custody. Such agreements can be accepted by the court and thus are enforceable court orders moving forward.

This does not mean that an informal arrangement cannot be made whereby grandchildren are cared for by the grandparents who may well be the primary caretakers for the child for many years. Florida has one of the highest number of grandchildren who live primarily or solely with their grandparents in the US. However, this does not mean that the grandparents have legal custody of the grandchildren. Grandparents also do not have any legal right to make any material decisions affecting the children’s care, education, religious upbringing, or on any other matter affecting their welfare.

There are a few legal scenarios that may result in giving the grandparents certain rights that can have the same or similar effect as legal and physical custody of the children.

Informal Custody

There are many instances where a parent agrees to have the child live with the grandparents without relinquishing parental rights. If a parent feels he or she cannot raise the child, then a durable power of attorney may be granted to the grandparents that allows them to make decisions affecting the child’s health, education, and welfare. The parent, though, can take the power of attorney away at any time.. Parents must also be concerned not to “abandon” the child as defined by Florida statutes which could have an impact on their parental rights in the future.

Temporary Custody

This is a legal form of custody that can be informally arranged but if the grandparents want the court to enforce their rights, they can ask the court for temporary custody of the child up to the age of 18. If the parent is unfit because of drug or alcohol dependency, illness, or injury, then the grandparents may file a Petition for Temporary Custody of Minor Child by Extended Family Member. The burden is on the grandparents to prove the parent has abused, abandoned, or neglected the minor child and that temporary custody to the grandparents is in the child’s best interest. An order granting temporary custody shall also outline the rights the grandparents have including access to school/medical records, ability to add the child to their health insurance, etc.

Another alternative is for the grandparents to request “concurrent custody” with the parents to allow the same rights and responsibilities as the parents have for the child.

Guardianship

If the grandparents are granted guardianship of the child, then they have full custody rights. This can last until the child turns 18. Guardianship grants the grandparents the right to make all material decisions regarding the child’s welfare. The grandparents do have to petition the court for guardianship, and demonstrate that that this is in the best interests of the child. Both parents must consent, but if they won’t, grandparents will have to prove that they are unfit. Grandparents also must demonstrate that they possess the physical, emotional, and financial capacity to care for their grandchild.

If you are a grandparent seeking custody of your grandchildren consult with a Florida divorce attorney about your situation and that of the parents and grandchildren to see what legal options are available to you.