Grandparent's Adoption Rights

By Libby Swope Wiersema
Grandparent's Adoption Rights

Most every state offers some level of grandparents' rights. In some cases, custody of grandchildren can be awarded to grandparents even though the rights of grandparents are not constitutionally guaranteed. The circumstances for grandparents to be awarded custody and adoption approval are not the same as visitation rights. Grandparents considering such a move should familiarize themselves with the required conditions prior to seeking to adopt.

What's Best for the Child

The best interests of the child are the top consideration when courts are petitioned in child adoption cases. Most states provide a list of relevant factors that are used to determine what situation is best for a child. Some of those factors might include: The child's safety, physical and emotional health, and overall welfare; The ability of the grandparent(s) to care for the child; The desires of both grandparent(s) and parent(s); The wishes of children if of an age to make informed decisions; The closeness, quality and history of the grandparent-child relationship; Any evidence of child abuse by either grandparent(s) or parent(s); Any evidence of substance abuse by grandparent(s) or parent(s); The potential of the child to acclimate to a new home, school or town; The willingness and capability of the grandparent(s) to give the affection needed for healthy child development.

Required Provisions

The first statutory provision that courts typically consider is the relationship between the child and the child's parents. If both parents are deceased, many states automatically consider the grandparents as potential custodians. If either parent is living, custody of a child is usually automatically assigned to that living parent. In order to obtain custody and petition for adoption, grandparents will be required to provide proof that the parent is unfit to care for the child. The grandparent-grandchild relation can be strong, but that in itself will not be enough to override the custodial rights of the parent(s).

Residing in the Same State

Parents and grandparents who live in the same state must follow the statutes of that state. If the parents in question are in the midst of divorce proceedings, that court hearing will almost always be the venue for hearing and deciding child custody. Some states, however, do allow for custodial requests after a case has been decided.

Residing in Different States

Parents and grandparents living in different states must abide by laws set in place to determine custody. The Parental Kidnapping Prevention Act requires any state to comply with its requirements. This means that if a valid custody decree is entered in a state, another state can not negate that decree. If the state in which the custodial case was originally filed no longer maintains jurisdiction, another state may then amend the decree. In 1998, this statute was modified by Congress to include grandparents.

State Provisions for Custody

Since grandparents must make a strong case for custody and adoption, they should carefully research all the provisions in their state statutes regarding these issues. State statutes may have similarities, but the actual application of these statutes can vary greatly from state to state. In cases in which there has been no valid determination regarding custody, the courts must follow the provisions set forth by each state through the Uniform Child Custody Jurisdiction and Enforcement Act. If a state is considered a child's home state, or if a child and his parent(s) have lived in a state within six months of the date a custody/adoption petition was filed by a grandparent, then that state has the authority to hear the case.

Other Considerations

Adopting a grandchild is a life-changing step bound by stringent legal requirements. In essence, the adopting grandparent becomes a parent, and though that's a right not easily taken away, it comes with great responsibility. Before moving to adopt a grandchild, it is important to truthfully consider how doing so will change your life. Here are some points to consider: Adopting a grandchild will make you fiscally responsible in every way for your new family member. It is essential that you be physically and emotionally able to raise another child. Your home should be able to comfortably accommodate another person in the household, and safety features might be required to make your home suitable for children. In some cases, adoptive grandparents may wish to allow a relationship between the parent(s) and child. It is essential that grandparents seeking to adopt grandchildren consult a family law attorney for guidance in what can be a complex process.

About the Author

Libby Swope Wiersema is a veteran health care journalist and features editor for newspapers and magazines. She writes and edits health, fitness, nutrition and travel features for multiple media outlets.