You love your grandchildren and want what is best for them. It is often the case that the parents are happy and willing to set up time between their child and the grandparents. Usually, parents what to further the grandchild-grandparent relationship. However, this is not always the case. What does a grandparent do when a parent cuts off contact? What does a grandparent do when the parents can no longer take care of their child? The Courts recognize that the grandparent-grandchild relationship can be highly beneficial for a child. Here we explore grandparent rights when things are less than picture-perfect.
Grandparents Rights to Custody and Visitation
Four Common Methods
Unlike parents, grandparents do not have any automatic custody or visitation rights. However, depending on the circumstances, you may be able to request rights or visitation if in the grandchildren’s best interests. In Nebraska, grandparents generally obtain rights or visitation with their grandchildren in one of four ways. The method of obtaining rights or visitation depends on the specific situation and the goals of the grandparent. The four methods generally are:
- Legal Guardianship
- In Loco Parentis
- Grandparent Visitation Rights
- Visitation During a Parent’s Time
Legal Guardianship
The legal default is that the parents are the legal custodians of their children. We have Constitutional rights to raise our own children and our children have a Constitutional right to be raised by their own parents.
However, if the child is unsafe and the parents are legally “unfit,” then the Court can place custody with someone other than the parents. When a non-parent has legal custody of a child this is generally done through a legal guardianship order. Although grandparents are a popular choice, you do not have to be a grandparent to be awarded legal guardianship over a child. Other relatives and close family friends are also common options, such as an aunt, uncle, or older sibling.
Because we are dealing with Constitutional rights, it is a fairly high bar to remove children from their parents and place custody with a non-parent. Thus, just because someone isn’t a great parent doesn’t mean they lose custody of their children. However, if the parents are failing, the Court can place custody with a non-parent over a parent’s objection. Especially when the grandparents have a strong relationship with the grandchildren, the grandparents are often one of the first places sought for placement if the parents are not legally fit.
The courts may consider awarding the grandparents custody via a legal guardianship if the parents cannot care for the child. Examples of when the parents may be found to be legally unfit:
- Substance or Alcohol abuse
- Neglect
- Serious Mental Illness
- Abandonment
If the parents are unfit, a grandparent may decide to file a legal guardianship action to ask for the Court to find that it is in the children’s best interests to award the grandparent custody. A grandparent does not need for the children to be removed from the home by Child Protective Services to file this action. If there is evidence of unfitness, the grandparent can file the action with the Court directly. However, if the children are removed from the home by Child Protective Services, the State may file an action that includes the request for the children to be placed outside of the home of the parents. Often grandparents are one of the preferred placements.
A grandparent can also file a guardianship action if the children are already in the grandparent’s custody due to parental unfitness. Once the grandparent has court order of legal guardianship, the grandparent is the legal custodian of the children until the children reach adulthood or further order of the Court.
Keep in mind that a legal guardianship is an action when you want full custody of the grandchildren. It is not to be used when you want the children to remain with the parents and are only seeking some regular visitation.
In Loco Parentis
Another option in Nebraska for a non-parent to obtain legal rights to a child is through a court order finding of in loco parentis. To obtain rights under in loco parentis, you have to have acted as a parent for the child. Thus, you have to have moved beyond the normal role of a grandparent and stepped into the shoes of the role of a parent.
In loco parentis is more common in the step-parent context but can be used by a grandparent. For example, a step-parent may be granted in loco parentis rights in a divorce action when the step-parent has acted as a parent for a large part of the child’s life even though not biologically related to the child. Thus, if a child has always known their step-father as their “dad,” the Court can preserve the relationship through the doctrine of in loco parentis in a divorce action even if the biological mother objects. This can result in the step-father being granted regular time with their step-child even after the parents are divorced. It is only used in cases where the step-parent has truly taken on the role of parent.
This same doctrine is occasionally used by grandparents who have acted as a parent or co-parent and then the legal parents want to sever the relationship to the detriment of their children.
The custody or visitation rights available in an in loco parentis order can be more flexible than those in a legal guardianship. You can use the action to obtain custody, but more commonly it is just to obtain set visitation time or even a joint custody-like schedule.
Some judges prefer the other methods to this route. However, it can be an option under the right facts. You would generally need to file your in loco parentis action and serve the child’s parents to move forward with a request for in loco parentis time.
Grandparent Visitation Rights
In Nebraska, a grandparent can file for grandparent visitation rights. Not all states allow this type of action. Unlike a guardianship action or in loco parentis action, you can’t seek custody under this method. This method is for seeking set parenting time with the grandchildren, not custody.
In Nebraska, Nebraska Revised Statute Section 43-1802 sets forth the conditions to qualify for grandparent visitation rights.
In summary, the general conditions to qualify for grandparent visitation rights are as follows:
- You are the grandparent.
- The child’s parents are not married to each other.
- The grandparent and grandchild have a significant beneficial relationship.
- It is in the best interests of the grandchild and there is a significant benefit to the grandchild for there to be grandparent visitation.
- The grandparent visitation will not adversely interfere with the parent-child relationship.
In exploring these factors further, you do not qualify as a “grandparent” if you have acted as the grandparent but do not meet the statute’s definition of a grandparent. For example, the parents of a child’s step-parent generally cannot bring an action for grandparent visitation rights even if the child has known them as “grandparents” for the child’s whole life. Further, if a parent’s parental rights were terminated, this generally prevents those grandparents from being able to seek grandparent visitation time. For example, if the Court terminates the father’s parental rights, then the paternal grandparents generally are excluded from bringing a grandparent visitation rights action.
If the parents are married to each other and collectively decide they do not want the grandparents to have contact, the statute prevents the grandparents from bringing an action in this situation as well. If the parents are divorced, were never married, or are have a divorce action pending, then the grandparents can bring an action at that time. A grandparent can also bring an action if their child/the parent of the grandchild is deceased.
Because you have to show a significant beneficial relationship to the child, the grandparent generally has to already have a well-established relationship with the grandchild to be successful. Thus, if there hasn’t been much contact or no contact in a long period of time, then the Court may find that the grandparent does not qualify for grandparent visitation rights. It is generally about preserving a relationship that has previously been established.
You have to show that there is significant benefit to the grandchild to be awarded the visitation. You have to show that the relationship was positive and beneficial for the grandchild. Depending on the age of the grandchild, the Court may also take into consideration the grandchild’s wants here. If the grandchild is wanting time with the grandparent, the odds are much more favorable than if the grandchild is resisting the visitation.
Even when the other factors are met, one of the toughest factors to overcome can be the last factor. There is always going to be some level of resistance by the parents to the grandparent visitation action or the parties would likely have reached some agreement as to grandparent visitation time outside of court. In fact, the petition for grandparent visitation rights must generally include language “that the parties have attempted to reconcile their differences, but the differences are irreconcilable and such parties have no recourse but to seek redress from the court.” Nebraska Revised Statute 43-1803(1)(f). However, if the Court finds that there is too much hostility between the parents and grandparent, the Court may deny the request for grandparent visitation. Thus, if there have been things like law enforcement involvement, criminal charges, or protection orders between the parents and the grandparent, the Court may find that grandparent visitation will adversely affect the parent-child relationship and deny the request. Thus, it behooves the grandparent seeking visitation rights to act with a high level of professionalism and respect when dealing with the parents so as not to sabotage a request for grandparent visitation rights.
Keep in mind that when the Court does grant grandparent visitation rights, it is often for a set amount of time. It could include things like phone time and a monthly visit for a couple of hours at a time. It may be for a fairly limited amount of time even if the grandparent historically spent a lot more time with the grandchild. That being said, every case is different and under the right facts, the amount of grandparent visitation time granted can be significant.
Unlike a guardianship action, and to some extent also unlike the in loco parentis action, a grandparent visitation rights action does not have to include any allegation of deficiencies by the parents. The only thing that must be alleged against the parents is that you were unable to reconcile differences regarding the grandparent visitation time. The parents can otherwise be excellent parents and still have grandparent visitation rights ordered over their objection if the other factors are met.
The grandparent visitation rights action is generally brought by filing a petition that includes the requirements set forth in Nebraska Revised Statute Section 43-1803 and serving the parents with the action.
Visitation During a Parent’s Time
If you are the parent of the non-custodial parent, the custodial parent may be denying both you and the other parent time with the children. Sometimes the best course of action is for the non-custodial parent to file an action for custody or specific visitation rights rather than the grandparent filing a separate action for grandparent visitation rights. If you and your child are on the same page, once your child has parenting time established, then you can visit with your grandchildren during your own child’s parenting time. It is not uncommon for a grandparent to help out with a child’s custody case either with financial, logistical, or emotional support.
This action generally involves the non-custodial parent filing an action for custody and/or parenting time rights. The grandparent is not actually a party to the court action. Unless there is a specific safety concern, the parent can then generally allow the grandparent to have some visitation time during their own parenting time.
Help with Grandparent Rights to Custody and Visitation
If you think you have a case for custody or visitation with a grandchild, you will likely need to file a court action and serve the parents. It’s highly advisable to consult a family law attorney who understands grandparent rights cases.
The attorney can advise you as to what method may have the best odds for success. The attorney can guide you through the specific legal requirements of your case and help you build a strong case for your specific situation.
Are There Alternatives to Going to Court?
In Nebraska, if you are seeking a court order to set forth and protect your rights, then you have to file a court action. That being said, you do not have to have a bunch of court hearings to get a court order. In fact, most cases do not go to trial and most often settle before any trial date. If the parties can reach an agreement, you may be able to submit your final order without ever having a single hearing in front of the judge.
Depending on the type of action that you file, the Court may likely require the parties to go to mediation to see if you can reach a resolution with the need for a trial. You can also attempt mediation prior to filing the Court action if both parties are willing to participate in mediation. However, any agreement reached in mediation would need to become part of a court order for it to have the binding effect of a court order.
Grandparent rights in child custody and visitation cases can be complicated, but you do not have to feel powerless. While specifics of state laws vary, there is often a route that you can take to pursue visitation or custody. Know your legal standing, work with a family law attorney, and prepare to show the benefit you can provide in your grandchild’s life to afford yourself the best opportunity possible to be successful in your action.
Law Office of Julie Fowler, PC, LLO | Divorce Lawyers Omaha
Child Custody | Child Support | Divorce Lawyers Omaha
If you are looking for an attorney in a child custody, child support case, or divorce case in Omaha, Nebraska, or the surrounding areas (including Papillion, Bellevue, Gretna, Elkhorn, Douglas, and Sarpy), contact our office to set up a consultation.