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Grandparent Custody Rights- A Favored Position with the Courts

I recently had a custody matter where grandparents won sole legal custody of their grandchild. The father was a participant in the proceeding, but was in agreement with the paternal grandparents' request. Mother was generally opposed, but remained uninvolved. The court saw fit to award sole legal custody. This case is somewhat atypical, but nonetheless a good indication of where courts may be heading.

Grandparents occupy a favored position among other third parties in custody disputes, and have standing to institute custody proceedings. In order to prevail, grandparents must meet the burden of showing that they assumed a parental role with respect to the child for 12 months, assumed responsibility for a child found to be dependent, or that they consider it necessary to assume responsibility for a child at risk due to parental abuse, neglect or illness.

Pursuant to the Custody and Grandparents' Visitation Act, Grandparents and great grandparents receive preferential treatment over other third parties and have standing to seek visitation and partial custody when a parent is deceased, when the parents are separated or divorced, or when a child has resided with his or her grandparents for a period of 12 months or more and is removed by the parents.The statute has survived constitutional challenges on due process and equal protection grounds.