Introduction
The term custody is used mainly to refer to the right given to someone which enables them to raise a child. Someone who has custodial rights is entrusted with the responsibility of caring, controlling maintaining the child. Most often, if the parents are living together both are entitled to the same custodial rights. Instances like divorce or separation proceedings may result in the custody rights being awarded to one of the parents. However, there are instances where custody can be given to parents during specified durations of time in what is commonly referred to as joint custody. Many states have laws regarding custody rights of grandparents, these laws however tend to differ between the states. For many states, custody is differentiated into physical or legal custody. Again, most states allow for sole or joint custody. Courts lose the authority to make custody orders when a person has attained the age of majority which is 18 years in the United States (Watnik 13). Some states are now allowing stepparents and nonparents to have visitation and custodial rights. This essay focuses on custodial rights in relation to grandparents who can be regarded as non-parents and are now being granted visitation and custodial rights as well (Boland 33).
Types of custody
Boland (13) explains that in the past, grandparents did not have the rights to visit their grand but there have been recent developments in the courts and law that have led to a reconsideration of how important the relationship between grandparents and their grandchildren is. Generally, there are two main types of custody: physical and legal custody, in physical custody the person who has been granted custodial rights lives with the child. For legal custody, the person with the custodial rights is given the right and obligation that enables them to make important decisions regarding the upbringing of the child. Some of the important decisions relating to the child’s welfare are for example those that relate to health, education, and the medical needs of the child (Toledo and Brown 145).
The other types of custody, namely joint custody or full custody are subject to divorce or separation settlements in court. Parents may be awarded full or joint custody after relevant considerations have been made. Joint custody was a common feature in the 1970s for it was assumed commonly assumed that through joint custody the number of disputed custody cases would become fewer. This form of custody demands that intensive communication between the parents, it becomes difficult to work through joint custody if both parents are hostile towards each other or trying to manipulate their children to side with them (Boland 42).it is a common practice that parents have to sign an agreement before they are granted joint custody.
Parents who have been granted joint custody through a court order share both physical and legal custody of their children. It is common that if one parent has been granted full custody, their partner will in turn be given visitation rights. The decision on whether to give a custodial entitlement to one or both parents in court is based on whether the best interest interests of the child will be guaranteed or not and who among the parents is more suited to ensure this based on the context of the case (Folberg 263).
Grandparents and custody Rights
Divorce or separation is not the only situation that may require custody transfer. The need to protect children from danger is one reason why grandparents become involved in custodial matters. Custody is now a big concern for grandparents who are helping to raise their grandchildren.
Whereas a majority of the grandparents may enjoy physical custody of their grandchildren, in most instances, the parents remain the legal custodians of their children. This comes about due to the biological relationship between grandparents and their grandchildren that may result in grandparents providing casual care to their grandchildren. Eventually, most grandparents may end up fully assuming the responsibility of caregiving (Toledo and Brown 153).
There are also other situations in which custody rights for grandparents become applicable. These include for example a situation in which a child has lost one or all their parents. Divorce or separation of parents also constitutes a significant basis on which grandparents can be granted custodial rights. Another validation for grandparents to get custodial rights is when they (grandparents) are known to have lived with their grandchildren for a significant period of time that exceeds one year. Grandparents can also be granted custodial rights if it can be proven that children for whom custody is being sought cannot receive proper care from their biological parents. The other mitigating situation that can result in custodial transfer to grandparents includes suspected or confirmed cases of drug abuse, child abuse, alcoholism, violence, child neglect, or a mental illness that can limit the ability of the parents to properly care for their children. These situations often lead to poor parent-children relationships and this can be a source of danger for the children and the parents of a well (Divorce Lawyer Source, para 1-2).
Grandparents can also apply for partial custody that enables them to spend time with their grandchildren without having to worry about parental restrictions or over- supervision. In applying for partial or full custodial rights, grandparents are required to first petition the family law court within their state. They then need to prove to the court that by having the children under their custody, the children’s best interests can be taken care of. At the same time, there must be reasonable proof to show that the person who wants the custody (in this case the grandparent) has a genuine concern for the children’s welfare. The person must also provide proof that there exists a genuine grandparent-grandchild relationship between themselves and those children for whom they seek custody for (Divorce Lawyer Source, Para 3-5).
It has been widely noted that most of the grandparents who have a responsibility in raising their grandchildren have to spend some time in a courtroom. The process involved in the court could take little time or one that demands lengthy procedures to be followed. The legal system is complex and can easily confuse an elderly person. The costs involved in legal procedures are also enormous and this is a major challenge that many grandparents continue to face when seeking custody or when applying for visitation rights for their grandchildren. Some grandparents complain that the legal system is so slow and they hardly seem to be getting anywhere. Few people working within the justice systems seem to understand how complexities in the legal systems pose a challenge to the elderly and how they can assist such people (Toledo and Brown 141).
Conclusion
Parents still retain most of the exclusive authority over the custody rights of their children. The idea that children are supposed to remain under the care of their parents is strongly ingrained within American society. The government mainly intervenes in parent-children relationships when the children are likely to suffer from harm. It is noteworthy that many states have laws that make clear provisions in relation to custodial rights for grandparents. The differences in these laws (in different states) are due to the fact that family law in the United States is governed by state and not federal legislation (Toledo and Brown 142). Custody is classified into two main categories physical and legal custody. It’s during court proceedings where the decision whether to garnet a joint or custody to parents is made, the guiding principle that informs this decision is the welfare of the children and trying to ensure that custody is given to someone who has a genuine concern for the children (Bricklin&Elliot 2024-2028). Many grandparents have physical custody over their grandchildren gained through the casual caring they offer to them. For anyone to be granted custody they must petition the family court in their state first and they should be capable of convincing the court that the welfare of the children will be assured under their responsibility. There are numerous reasons under which custody can be transferred to grandparents. These include the death of one or all parents, cases of child abuse and neglect, alcoholism, violence and parenting duties.
Works Cited
Boland, Mary. Your Right to Child Custody, Visitation, and Support. 4th Ed. Illinois: Sourcebooks, Inc, 2007. Print.
Bricklin, Barry and Elliot, Gale. Grandparents Rights Manual: 2007. New York: The Custody Library, 2007. Print.
Divorce Lawyer Source. Custody Rights of Grandparents. 2010.Web.
Folberg, Jay. Joint custody and shared parenting. 2nd Ed. New York: Guilford Press, 1991. Print.
Toledo, Sylivie and Deborah, Edler. Grandparents as parents: a survival guide for raising a second family. New York: Guilford press, 1995. Print.
Watnik, Webster. Child Custody Made Simple: Understanding the Laws of Child Custody and Child Support. 2nd Ed. California: Single Parent Press, 2003. Print.