Grandparent custody arrangements are becoming more and more common. States which previously did not recognize grandparent's rights are becoming more open to the reality that many families depend on the role of the grandparent and his involvement in custody may be necessary. However, the Constitution recognizes the rights of biological parents supreme over any other third party, including biological grandparents. Full grandparental custody rights can only be achieved with consent of the biological parents or when the court finds full custody would be in the best interests of the children. Many states label this type of third-party custodial arrangement as custody by a "de facto" parent.
Meet the requirements of a third-party custodian or de facto parent. In most states, these are the two terms assigned to a non-biological parent taking on the role of primary custodian. A de facto custodian, such as a grandparent, can achieve this legal status if he or she resides with the child, is financially responsible for all the child's needs, tends to all childcare responsibilities and holds herself out as the child's parent. Not all states recognize the de facto custodian status and some states unabashedly reject the notion that a third party non-parent can have full custody over a child. Check the state code to ensure the state of the child's residence recognizes this legal distinction.
Obtain consent from biological parents to transfer custody and guardianship to the third party non-parent. Many states require written or formal consent given in a court proceeding by both parents. Other states are satisfied with implied consent in any case where the parent has abandoned the child or otherwise does not evince an intent to parent.
Read More: Family Law on De Facto Relationships
Encourage the grandparent to draft a petition to the Kentucky family court detailing specifically why it is in the child's best interests for full custody to be awarded to her. The petition should first set forth the facts specific to the case. This could include the length of time the child has resided with the grandparent, the age of the children, evidence the grandparent has served as the sole financial supporter and that the bond between the child and grandparent strong. The petition should then detail the state law in support of the de facto parent status. Lastly, the petition should relate the state law with the specific facts of this case.
Attend a hearing on the matter. All material parties must attend the hearing, including the biological parents, the grandparent seeking custody and the children, if they are old enough to testify. The court's primary concern is the best interests of the child. It will not make any decrees without first determining that the child will be best served by the custody agreement. The judge will inquire as to the child's wishes, the parents' wishes, relationships between the child and his siblings, biological parents and grandparents, the child's adjustment to school and home, mental and physical health of all parties involved, history of domestic violence, nature of the bond between child and de facto custodian and why the child has been placed with the de facto custodian up to this point.
Uphold the court's decree of de facto custody. A grandparent or non-parent third party awarded de facto custody now has the same rights as any previous custodial parent. This includes both physical and legal custody of the child. Biological parents are not to interfere with the custodial arrangement set forth by the court. It is possible for a grandparent to be awarded full custody of children with biological parents given visitation, if in the best interests of the child.
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