When disaster strikes in a troubled family situation and parents are unable to properly care for the children, the state is obligated to step in and protect the children until the emergency or trouble ends. Taking a child out of the home and placing her in protective custody, usually in a foster home, is the state's default choice. However, grandparents may, in some circumstances, petition for temporary custody.
In most cases where a child's welfare may be at risk, the court will choose to place a child in protective care until a judge can determine what is truly in the best interest of the child. In most cases, a judge will insist that a child be remanded to protective custody at least until the state's Child Welfare Services office can investigate the situation and make a determination for the court to consider. It is usually fruitless to try to get immediate custody of a grandchild. The court wants to have all the facts first.
Regardless of what may be going on with the parents of the child, any interested grandparents should retain their own lawyer to advocate for them. The lawyer for the grandparents can file various motions to try to induce the court to grant temporary custody to grandparents when it is clear the child's best interest will be served by this ruling. Many judges will entertain, and grant such motions if the lawyer is able to present a good argument.
Child Welfare Process
In some cases where temporary custody is at issue, grandparents may need to go through an investigative process with the state Child Welfare Department. The welfare agency will usually want to inspect the grandparents' home, determine their ability to care for the child, and weigh any risks to the child. Once the welfare department makes a positive recommendation to the court, the grandparents often receive temporary custody.
Longer Term Issues
In most cases, the court will establish temporary custody for a defined time period and then ask Child Welfare to revisit the home. A second hearing may be held to make sure the child is doing well in the grandparent's home. A longer period of temporary custody may be granted after this "follow up" hearing.
After a suitable period, if it is clear that the parents will not be able to take responsibility for the child, the grandparents can usually return to the court and petition to have permanent custody awarded to them. Most judges find this resolution preferable to sending a child to a foster home. Exceptions do happen however, especially if the grandparents have had trouble caring for the child, or the child's welfare is still at risk in the opinion of the state experts.
Conflicts With Other Grandparents
Most children have two sets of grandparents. In some cases, both sets of grandparents may express a desire to have custody for the child. When this occurs, the court usually orders the grandparents to submit to binding mediation to settle the matter amicably. Otherwise, the court will rule, based on the recommendation of the state welfare agency, where the child would be most likely to thrive. In some rare cases, when the two sides are unwilling or incapable of coming to an agreement, the court may rule against both sets of grandparents and instead may give custody to the foster care system.
- "Grandparents Rights, 4E (Grandparents' Rights)"; Traci Truly; December 1, 2005
- "Your Right to Child Custody, Visitation and Support, 4E"; Mary Boland; January 1, 2007
- "Grandparents Raising Grandchildren - Supergrands and Their Superkids"; Barbara Setzer; January 10, 2009