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Navigating Legal Issues Surrounding Grandparents Rights and Child Custody

By Brian Joslyn October 30, 2023 Family

The age-old saying “it takes a village” rings especially true when it comes to raising children. In today’s dynamic family structures, grandparents often play a significant role in the upbringing of their grandchildren, either by providing essential support or even assuming the role of primary caregivers. A staggering 2.7 million grandparents dedicate long hours to the upbringing of another generation in the US, even after they’ve bid farewell to their own child-rearing days.

While other family members often play a role in this support network, there are currently one million children who have their grandparents as their primary parental figures. Interestingly, only 150,000 kids are being raised solely by their grandfathers, and a significant 55% of devoted grandmothers who maintain households for their grandchildren are under the age of 55.

It’s noteworthy that two-thirds of families supported by at least one grandparent also include the child’s parents in their lives. In total, a staggering 2.7 million grandparents in the United States are stepping up to the plate to raise their beloved grandchildren, emphasizing the importance of understanding the rights and responsibilities they hold in this critical role.

It is crucial for grandparents to be aware of their rights and responsibilities. Knowing where they stand legally is essential to ensure the best possible care and upbringing for the grandchildren they are dedicating their time, love, and energy to. This understanding not only supports the well-being of the children but also helps maintain harmonious family dynamics in the modern, extended family landscape.

What Are Grandparents’ Custody Rights?

Laws will vary from state to state. In a state such as Ohio, grandparents have certain rights when it comes to their relationship with their grandchildren, but these rights are not as extensive as those of parents. Ohio law recognizes the importance of maintaining the grandparent-grandchild bond, especially when it is in the best interests of the child. In certain circumstances, grandparents have the right to claim visitation or custody over their grandchildren; however, certain criteria must be met first.

Grandparents can seek visitation rights under specific circumstances; however, the court will evaluate whether granting visitation to the grandparents is in the child’s best interests. It’s important to note that these rights can be subject to various conditions and requirements, and the specific circumstances of each case play a significant role in determining the outcome.

Therefore, grandparents may want to consult with an attorney to better understand and navigate their legal rights regarding visitation with their grandchildren.

Requirements to Request Grandparents’ Rights for Visitation

It’s important to understand that not every grandparent has unfettered visitation rights to their grandchildren. There are certain requirements that must be met in order for grandparents to seek custody rights for visitation. At least one of the following factors must be met in order to claim grandparents’ rights in a State such as Ohio.

Dissolution or Termination of Marriage by Parents

One of the key requirements for grandparents to claim visitation rights is when the married parents have divorced, separated, or terminated their marriage. This condition allows grandparents to seek companionship or visitation rights by filing a motion during or after:

  • Divorce
  • Dissolution of marriage
  • Legal separation
  • Annulment
  • Child support proceedings

The reason for this is to ensure that the child’s well-being remains a top priority, even in the midst of family transitions. When the court evaluates such requests, it takes into account the grandparents’ genuine interest in the child’s welfare and determines whether granting visitation is indeed in the child’s best interests.

In making this decision, the court considers specific factors that help inform what is most advantageous for the child’s physical, emotional, and psychological development, emphasizing the paramount importance of the child’s welfare in the legal process.

It’s worth noting that grandparents’ rights may be subject to various conditions and requirements, and the unique circumstances of each case will heavily influence the outcome. Given this legal complexity, grandparents may find it beneficial to seek the counsel of a child custody lawyer who can provide guidance and help them navigate the intricacies of their legal rights regarding visitation with their grandchildren.

A Parent Passes Away

One of the circumstances, under which grandparents may claim visitation rights, is when a child’s parent has tragically passed away. In such cases, a parent of the deceased individual has the option to file a complaint for companionship or visitation rights in the county’s court of common pleas where the child resides.

It’s important to note that this provision recognizes the emotional significance of maintaining a connection between the child and their deceased parent’s family, including grandparents. The court, however, carefully considers several factors and primarily focuses on what is in the best interests of the child.

While the loss of a parent is a deeply emotional event, it doesn’t automatically mean that the grandparents on that side of the family will never have the opportunity to see and spend time with their grandchild again. The court’s decision hinges on the child’s welfare, ensuring that any granted visitation is in their best interest. This legal framework acknowledges the importance of preserving family connections and providing stability in the child’s life even in the face of such a profound loss.

The Child’s Mother Is Unmarried

In certain states, a key requirement for claiming grandparent visitation rights is that the child’s mother is unmarried. This provision allows both maternal and paternal grandparents to seek companionship or visitation through a legal process.

If a child’s mother was unmarried when the child was born, maternal grandparents can file a complaint in the court of common pleas in the county where the child resides. Similarly, if the child’s father acknowledges paternity, or if paternity is established through a parentage action, paternal grandparents also have the right to file a complaint for companionship or visitation.

The court, in its evaluation, will consider various factors and ultimately grant companionship or visitation rights if it deems it to be in the child’s best interest.

What Factors Do the Courts Consider When Determining Grandparents’ Rights?

When determining grandparents’ visitation or custody rights, the court might evaluate various factors in the child’s best interests. These factors include:

  • The quality of the grandchild’s relationships with grandparents, parents, and other relatives.
  • The grandchild’s own wishes and the preferences of the parents.
  • The age and developmental stage of the grandchild.
  • The geographical distance between the grandparent’s home and the child’s primary residence.
  • The health and specific needs of the grandchild.
  • The grandchild’s relationships with their siblings.
  • Parents’ schedules and availability.
  • The child’s adjustment to their current residence, school, and community.
  • The mental and physical health of everyone involved.
  • Investigation of evidence of child abuse, neglect, or domestic violence within the family.

How to Get Grandparents’ Custody Rights

When it comes to determining grandparents’ custody rights, the legal process is both complex and highly considerate of the child’s well-being. While visitation rights are one aspect, grandparents may also explore the option of obtaining legal custody if the grandchild’s current living situation is deemed unsafe or unstable. However, it’s important to note that Ohio courts prioritize the rights of biological parents when it comes to the care of their children.

To assert grandparents’ custody rights, the courts typically need to establish that the child’s parents are unsuitable or unfit to have primary custody. This determination arises when a parent has been proven to be neglectful, abusive, or otherwise unfit to provide proper care. Courts take this matter very seriously, and such unfitness must be demonstrated concerning both parents for a grandparent to be considered for primary custody.

Once the court determines parental unfitness, their next step is to assess whether it is in the child’s best interests to grant primary custody to the grandparent. Pursuing primary custody is a significant decision, as it can have profound implications, potentially affecting the relationship between the grandparent and their adult child.

Therefore, this step should only be taken when it is unquestionably in the best interests of the grandchild, prioritizing their safety and welfare above all else. Since laws vary from state to state, it’s always best to speak with a family lawyer to fully understand your rights.

How to Prove a Parent Is Unfit

Proving a parent is unfit is a complex process, and it’s important to understand the specific criteria that the court considers. Here’s a listicle example outlining what does not constitute unfitness in the eyes of Ohio law specifically:

Economic Status

Economic limitations, such as a parent’s inability to afford luxuries or reliance on government or monetary assistance, do not make a parent unfit.

Emotional Abuse

While emotional abuse, like favoritism or cruel comments, is harmful, it doesn’t automatically render a parent unfit under Ohio law.

Lifestyle Choices

Personal choices like promiscuity, having multiple children with different partners, or other decisions unrelated to a child’s well-being are generally not considered factors of unfitness.


Homeschooling, personal beliefs about education, or religious and political choices are left to the discretion of parents and don’t determine unfitness as long as truancy guidelines are being followed.


Allowing children to watch certain content or stay up late doesn’t necessarily indicate unfitness.

Personal Activities

Choices like getting a tattoo or engaging in certain recreational activities do not inherently make a parent unfit.

To prove that a parent is unfit in order to obtain custody rights in Ohio, grandparents must prove at least one of the following:

Serious Harm

A parent causing serious and direct harm to a child is a strong indicator of unfitness.

Substance Abuse

Drug and alcohol dependency are common reasons for a parent to be deemed unfit.

Physical Abuse

Physical abuse of a child may or may not lead to unfitness, depending on circumstances and the parent’s willingness to seek help.

Sexual Abuse

A parent committing, or them allowing another individual to commit, sexual abuse against their child is likely to be considered unfit.

Criminal Convictions

Parents facing prison sentences can be considered unfit, while those on active military duty are not.

Mental Illness

If a parent’s mental illness negatively impacts the child’s well-being, it can be grounds for unfitness.

Proving a parent is unfit is a crucial step for grandparents seeking custody of a child. It’s important to recognize that merely believing a grandparent can provide a better upbringing is insufficient. The parent must be proven to be unfit in a serious manner to justify a custody transfer.

This list can serve as a guideline for understanding what factors do and do not constitute unfitness when navigating such complex legal matters.

Determining Grandparents’ Rights with Abused, Neglected, and Dependent Children

In cases involving abused, neglected, or dependent children, determining grandparents’ custody rights can be a complex matter due to the legal framework.

For instance, when a child is in temporary custody, these agencies must facilitate visitation or communication opportunities for siblings and significant others if it’s determined to be in the child’s best interest. However, the rules remain silent regarding grandparent visits and communication in situations where:

  • Permanent custody is granted to a PCSA or PCPA.
  • A child is placed in a planned permanent living arrangement.
  • Legal custody is awarded to someone other than the parents.
  • A child is placed under protective supervision.

In this context, it is unlikely that the court would conclude that grandparents have an inherent right to visits or communication in cases of abuse, neglect, or dependency. This interpretation is primarily because the Ohio Supreme Court has previously held that if grandparents are to have companionship or visitation rights, these rights must be expressly provided for in statute, and they cannot be assumed as a matter of course.

Therefore, the determination of grandparents’ custody rights in cases involving abused, neglected, or dependent children is contingent on the specific circumstances and the legal provisions established by Ohio law.

How a Child Custody Lawyer Can Help with Grandparents’ Rights

Navigating the complex legal landscape of grandparents’ rights or custody can be a challenging endeavor. This is where the expertise of a qualified child custody lawyer becomes invaluable. They can help grandparents understand the specific legal requirements and criteria necessary to establish their rights or file for custody of their grandchild. This includes guiding them on what constitutes a valid claim for custody, visitation, or companionship based on the child’s best interests, as well as addressing potential challenges.

Additionally, a child custody lawyer can assist in the preparation and filing of necessary legal documents, ensuring that all relevant paperwork is complete, accurate, and submitted within the appropriate timeframes. They can also represent grandparents in court proceedings, presenting a compelling case that demonstrates the child’s welfare as the paramount concern.

Let’s Have a Conversation:

Have you ever considered filing for custody rights of your grandchildren? Do you think transfer of custody to a grandparent could be a solution for a better future for the child? Do you think the child should have a say in such disputes?

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Lynnette Reaney

How about grandparents rights in Illinois. I just want to see my grandchildren I have raised for 5 years and now their mother my daughter doesn’t want me to have anything to do with them…

Catherine Vance

A good article by Mr.Joslyn. Here a few more tips from a California child custody lawyer.
(1) There is “grandparent visitation” and there is “guardianship” — not the same.
(2) Guardianships require a finding of “detriment” to the children, which is not as low a bar as parental unfitness. (California law).
(3) Do online searches to see what lawyers really KNOW grandparent law in your county.
Some judges are notorious for reading the statutes broadly (to allow visitation easily) and others read the statutes narrowly (to not overstep parental rights).
(4) Do not count on “free consultations” because sometimes these are only 20 minutes.
(5) I tell people, “You do not have to be able to afford a lawyer for the long-term, but try
to be able to afford a proper, comprehensive consultation.” In other words, tell the person
answering the phone you are willing to pay for a full, comprehensive consultation that might help you enough to handle the case yourself (if you must).
(6) Many court systems now have no-cost “Help Centers” to assist people in family law
matters. In California, every county has a “Family Law Facilitator” with helpful staff. Find out what your county has in your staff.
(7) If your grandchildren need serious help and you must report what is happening to Child
Protective Services (or similar names), protect your grandchild. These agencies do not have the goal of taking the kids forever–they want to protect the kids by helping the parents face their problems and fix their issues. YOU could become the relative placement.
We do NOT prefer foster homes—the preference is always a relative placement and the goal is to help the parents become better betters and reunify the family, if possible.
(8) Find out what day and time custody hearings or guardianship hearings are so you can
watch and figure out how the judge thinks and watch lawyers to see who appear good.
The Family Court Clerk can tell you.

The Author

Brian Joslyn is a family law and divorce attorney practicing in the state of Ohio. Brian handles cases involving divorce, separation, spousal support, child support and more. Brian has devoted his life to principles of fairness and justice in the treatment of his clients and the outcomes he seeks on their behalf.

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