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Grandparent Rights: Beyond the Basics: A Loophole

Posted on July 17, 2015 at 10:52 AM

Recently I handled a case in which Grandparent Rights were at issue. As I have written before on this blog, Grandparent Rights are not as strong as a Grandparent might hope for or expect. There are only special circumstances in which a grandparent may ask for rights. Many times this is in a divorce case or a modification of the order from that previous divorce case in regards to the child custody portion of that divorce case.
The law allows for Grandparents to Intervene in Divorce cases and Modification of Child Custody cases. It also allows for Grandparents to request rights in other ways, under other circumstances. However, there is a loophole in the law as it exists at this moment. Consider this circumstance:
A couple has children together. They split—either by divorce or just split as a couple. Either the couple goes through a divorce and comes up with a custody plan or the unmarried couple splits, no court required. A grandparent has a chance to intervene here in the divorce. In the second situation, the grandparent does not because there is no court proceeding to intervene in. The grandparents have been close to the children for years, but the grandparents believe that the dissolution is their son or daughter's own business and they don't want to get mixed up in their case. This is a legitimate consideration. Divorces are messy. Many times these proceedings can bring out the worst in people, and in this case it's grandma and grandpa's son and daughter-in-law or vice versa. Grandma and Grandpa don't want to see this part of their son or daughter and they don't want to hear the accusations the other spouse has.
The reluctance of a grandparent to intervene could very well be a mistake that costs them their right to have a relationship with their grandchildren. In many instances, this is something that you can go back and ask for but here is the rest of the scenario:
                Grandma and Grandpa's son or daughter dies. Son or daughter is in a car accident. Son or daughter has a terminal illness like cancer and passes. Perhaps son or daughter dies some other way.
Terrible things happen all the time. One of the things we do as lawyers is prepare people for those terrible things and hope they never come to pass. If grandparent does not intervene and does not ask for grandparent rights before son or daughter's death, their rights to see their grandchildren could be in jeopardy. When son or daughter dies, past daughter-in-law or son-in-law may request the court for their current partner to adopt the son or daughter's children. As of now, the law has explicitly disallowed grandparents (whose son or daughter is the deceased ex-spouse) from intervening in an adoption. Once an adoption has occurred, all grandparent rights cease for the grandparents (whose son or daughter is the decease ex-spouse).

BOTTOM LINE: Intervening when the opportunity presents may allow an attorney to add language to court documents that can preserve your rights.

Categories: Custody, Divorce

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