In order to file a child custody suit, a person must have “standing” to bring the suit. Grandparents do not automatically have standing, but they do in certain situations. The most common situation where grandparents have standing to sue for custody is if the child is in danger. The grandparents must prove that the child’s current circumstance will “significantly impair” the child’s physical health or emotional development. For example, if the parents have a substance abuse problem or are abusive, the grandparents can legitimately claim standing under this provision.
Additionally, grandparents have standing to sue for custody if they have had “actual care, control and possession” of the child for at least six months before filing the suit. In other words, if the child has been living with the grandparents and the grandparents have been the caregivers for the child for at least six months, those grandparents now have standing. If both a parent and a grandparent have shared the care giving responsibilities, that is not enough to confer standing on the grandparent. The six-month period must end no more than 90 days before the suit is filed.
If the child’s parents have died, the grandparents have standing to file suit. This rule also applies to other relatives within the third degree of consanguinity. That includes brothers, sisters, nieces, nephews, aunts, uncles, grandparents, and great-grandparents.
Finally, grandparents have standing if the parents consent to the suit. This is actually a relatively common occurrence. When parents are unable or unwilling to care for their children, they often allow the grandparents to have custody. If the parents have essentially passed on their parental responsibilities to the grandparents, it is advisable for the grandparents to file suit and obtain a formal order.