Grandparents’ rights to visitation and child custody are governed by whether they have standing under Sections 5324 and 5325 of Title 23. If a court determines that a grandparent has standing, the court may award physical and legal child custody, partial child custody or visitation rights.
A grandparent who wants to file for primary physical and legal custody of the child may only do so in two very limited circumstances. The first would be if he/she stands in loco parentis to the child. This means that although he/she is not the biological parent, he/she has lived with the child and provided care, affection, and nurture as if he/she were the parent. The second option for a grandparent to obtain primary physical custodial rights of a child is if the grandparent meets all of the following criteria: 1) the grandparent’s relationship with the child began with either the consent of the parent or by court order, 2) the grandparent assumes or is willing to assume responsibility of the child, and 3) the child has been determined to be dependant; or the child is at a substantial risk due to the parent’s abuse, neglect or incapacity; or the child has lived with the grandparent for at least twelve consecutive months after being removed from the home by the parents.
If the grandparents successfully demonstrate standing, they may ask the court for both legal and physical custody of the child. Once standing is established, the case will proceed through the court system like any other custody case and the court will consider what is in the child’s best interest when making this decision. To learn more about the factors a court will consider in child custody cases, read Child Custody Factors.
A grandparent may also file for partial physical child custody or supervised custody (visitation rights) if one of the following circumstances exist: 1)if the parent of the child is deceased, 2)if the parents of the child are separated or in the process of obtaining a divorce, or 3) when the child has lived with the grandparents for a period of twelve consecutive months after being removed from the home by the parents. If a grandparent is awarded partial custody, he/she may exercise physical custody of the children for specified periods of time, such as weekends and holidays. If the grandparent is awarded visitation rights, he/she is entitled to periods of visitation with the children, while under the supervision of the custodial parent or some other custodian.
Again, once standing is established, the case will proceed like other child custody cases, except that the court will consider two additional factors: 1) the amount of personal contact between the child and the grandparent prior to the filing of custody and 2) whether an award of custody would interfere with the parent-child relationship.