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Mother versus a Grandparent- Who Wins?

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There are two distinct factors at play when a mother challenges a grandparent's custody of her child- "parental right" and "the best interests of the child."

By Attorney Jeffrey B. Engle, Grandparent Custody Lawyer

I have a case now that involves a very loving grandmother and grandchild.  The mother and her have agreed in writing that grandmother will maintain custody of the child- both legal and physical.  Their "agreement" is what I would call a "napkin" agreement or one that is between to parties, not drafted by a lawyer and not approved by the courts.  Rather, it's written on the back of a napkin- hence the name.  My advice to grandmother...don't change a thing!  Let mom continue to have custody of the child when she wants it, within in reason.  Don't do anything to place this matter in litigation.  This article focuses on the two doctrines that will drive this case if it should ever go to court.

In determining a custody dispute between the mother of a minor child and his/her grandparents, the courts have frequently based their decisions on two basic principles or doctrines. The first of these doctrines, which may be called the "parental right" doctrine, stands for the proposition that the mother is entitled to the custody of her children unless it clearly appears that she is unfit or has abandoned her right to the custody or unless there are some extraordinary circumstances which require that she be deprived of custody.

The second principle is the so-called "best interests of the child" concept, according to which the welfare and interest of the child is the primary test to be applied in awarding the custody of children.  The conflict between these two basic theories is more apparent than real, since even those courts which tend to apply the "best interests of the child" doctrine firmly support the proposition that one of the most important factors entering into the determination as to what constitutes the best interest of the child is the general belief that normally it is in the child's best interest to be in the custody of his mother as distinguished from the custody of a grandparent.

The two doctrines are not always clearly distinguished in the opinions, and in many instances both doctrines seem to have been utilized by the courts, such interchangeability probably being due to the fact that both doctrines seek the same basic objective from two different approaches. 

Instantly, the matter remains open as grandmother will continue to exercise custody over the child.  Unless and until mother disagrees with grandmother and moves the matter into court, there will be no analysis as suggested above.  However, should the matter go in that direction, we feel that grandmother is in a prime position to maintain her rights as the child's primary legal and physical caretaker.

If you have questions about a grandparent custody matter, contact the experienced grandparent custody lawyers at Shaffer & Engle Law Offices, LLC toll free or email us today.

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