There are two predominant situations when the custodial rights of grandparents come into play. One is when the grandparents want custodial rights over the child’s real or adoptive parents. The other is when the grandparent wants custody over persons who are not the child’s real or adoptive parents, but who presently have custody.
What Custodial Rights do Grandparents Have to Their Grandchildren when They Are Facing a Custody Battle with the Child’s Parent?
Whenever a court decides whether a child should be awarded to the parents of the child or his grandparents, it applies certain broad and general principles which reflect the attitude of society in regard to the parent-child relationship. The courts base their decisions on two basic doctrines:
- “Parental right” doctrine: This guidepost of child custody cases says that in the absence of particular circumstances the custody of a child will be given to the parents unless the person seeking custody can prove that the parents are unfit. This rule is based on the idea that the parent is the natural guardian and custodian of the child and that there is no substitute for his love, affection, and guidance. In other words, the parent always has a superior claim.
- “Best interests of child” doctrine: This doctrine says that custody should be awarded in accordance with the best interests of the child regardless of the fitness of the parent. Custody depends on what is right for the child. Florida and some states have a presumption that custody by a parent is in the best interests of the child unless the grandparent can prove otherwise.
What Custodial Rights do Grandparents Have to Their Grandchildren when They Are Facing a Custody Battle with Someone Other than the Child’s Parent?
Courts often apply the “best interests of the child” doctrine in custody trials, which means that custody should be awarded in the best interests of the child regardless of claims of particular status or legal relationship of the claimant to the child. In Florida, as in many other states, everything else being equal though, a grandparent should be favored in a custody proceeding against someone other than a parent. Being a grandparent is clearly an important factor in the court custody determination.
The Florida has Supreme Court has ruled that grand parents do not have a legal right to visitation with their grand children. There are a few exceptions. If a case is in Dependency court they do have visitation rights. This seems rather strange in light of the equal protection clause of the Florida and the United States constitution.
Should I Contact a Lawyer Regarding my Grandparent Custody Rights?
A habeas corpus petition is the correct way to determine your custody rights to a child. This is a difficult and complicated petition, and one you should contact a lawyer for. The cases are often long and complicated and having a lawyer at your side is necessary to have success in these court battles.
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