Problems

• Historically, the two greatest problems a grandparent faces when attempting to assert rights over their grandchildren are that: 1) state law is very limited in defining what rights a grandparent actually has; and 2) the law places great deference on a fit parent's decision about how to raise their children.
  
  

Standing to Petition

• The greatest obstacle a grandparent faces is the general lack of standing to assert rights over a grandchild. "Standing" is a legal concept that refers to a person's recognizable right to bring a matter before the court. When the person at hand is a parent standing to assert rights over a child, this is easy to establish, as they have a close and vested interest in the issue. If the person is a grandparent, however, the courts have only recognized standing to pursue a case where state law explicitly grants that right.
  
  

Grandparenting Time or Visitation

• There is one area in which a grandparent is specifically granted the right to petition for access to the child, and this is for grandparent visitation. Generally, to gain visitation, a grandparent must demonstrate that the child's parents are either separated or divorcing, or have already done so, or that the grandparent's child (mother or father of the grandchild) has died. In these cases, the grandparent will have standing to bring a case to court.
  
  

Parental Fitness

• Assuming a grandparent can overcome the standing requirements, they inevitably run into the concept of parental fitness. Generally, even if a grandparent has a right to petition for custody or visitation with a grandchild, the court will always give great deference to the decisions of a fit parent. This means that even if a grandparent has standing to seek custody or visitation, the court gives considerable weight to the parent's desire regarding the grandparent's petition.
  
  

Custody

• Generally, grandparents have limited rights to petition for custody of grandchildren, because the law does not recognize that they are appropriate parties to seek custody. Unless a statute specifically grants the right to petition, grandparents are going to be unable to seek custody.
  
  

Emergency and Guardianship

• While a grandparent generally lacks standing, in an emergency situation they will be able to seek custody of a grandchild, if only on a temporary basis. This right is most commonly used when the death of a parent occurs, but it is possible to employ it in other situations. Another area in which a grandparent may seek custody is if he or she is the child's legal guardian. In most states, a legal guardian is given the right to seek custody of a child, assuming the child lives with a grandparent and the parent does not support the child, or where a parent's rights have been suspended or terminated. In these cases, a grandparent should first ask the court to be appointed legal guardian and then seek custody of the child once the appointment is made.
  
  

Best Interests of the Child

• Should a grandparent establish the proper requirements for standing and overcome the problems of parental fitness, remember that the court makes all custody decisions after carefully considering the best interests of the child.