(This post was edited on 02/26/2022)
GRANDPARENTS HAVE THE RIGHT TO RAISE YOUR GRANDCHILD WHEN…
When do grandparents have rights to raise their own grandchild? Grandparents do have rights. If the biological parent of their grandchild wants to designate a grandparent to care for the grandchild as opposed to the State or CPS or DHS placing them into foster care. It is certain that the grandparent has the right to have the child as designated by the fit parent.
Does the grandparent have to prove their fitness?
NO. Your adult child has the right to designate any safe, responsible adult to care for the child as long as that parent has not had their rights terminated. There can be exceptions. We are not addressing those here. We are speaking in general terms here. We are making the assumption that the adult child has not been determined to be a danger to the child or unfit. However, even unfit parents have been given the option to designate a caretaker for the child. But when that happens, then the agency or court handling the child custody matters would have a say in who ultimately gets approved.
But in cases of fit and loving adult children facing a child custody battle simply because of allegations that are unproven or because there is a divorce and the other parent is objecting to your adult child having possesion of the children and the court is seemingly going along with that, or going to, or the other parent is alienating the children from your adult child, or your adult child is incarcerated, then you can be designated by your adult child to be the guardian or even become the custodian of the child. Your adult child can sign their rights over to you. So when your adult child, who is the natural parent, is involved in some sort of child custody litigation, it is usually either a state agency like child protective services trying to stop your adult child from designating you to take care of the children, or the opposing counsel for the ex that is making the argument or requirement that the grandparent prove their fitness and qualify to be a guardian of the child. They are making the public think that a judge has to approve and order where the children go. According to fundamental rights however, your adult child has every right to decide who has the children during their time. See In re Sanders case out of Michigan Supreme Court for further understanding of what the state must do before they can impair a natural parent’s right to give the children to the grandparents.
Does the biological parent have to prove that their choice is better than CPS or DHS or a judge’s choice?
Does the biological parent have to prove that they can take possession of their child in order to designate the grandparent the caretaker of the child?
What then is the rule and the standard? Sherry and Ron B Palmer explain these arguments and here is a summary and a step-by-step list of what you should be looking for.
Many times a grandparent sits on the sidelines completely helpless. Their child wants them to raise their grandchild but the State steps in and decides that the grandparents will have to qualify like everyone else. And then the State sends the child to foster care or even gets the court to allow them to adopt them out!
This does not necessarily have to be the case. While grandparents may not have constitutional rights directly, there are other ways you can get your grandchild into your life when a biological parent is unable to care for the child and you would like to take the child into your care.
START HERE: First find out the following:
- Did the State have an adjudicative hearing with each of the biological parents?
- Did the State properly find the parent unfit?
- If the State is presuming the parent to be unfit, this is not the same thing as finding them unfit. Just because the State finds one parent unfit does not mean that both parents are unfit.
- If the State has a statute that allows them to presume a parent unfit because the other parent is found to be unfit, the Statute may be unconstitutional.
- Presuming unfitness or not making a determination at all and then using State authority to take possession and control over a child against the unadjudicated parent’s wishes, does not make the statute constitutional.
- Is the parent unable to take direct possession of the child themselves due to being incarcerated, being in the military, or even being too far away to exercise their rights grounds for the State to skip an adjudicative hearing?
- Being unable to take physical possession of the child by the biological parent does not sweep the parent’s rights away to decide who they wish to designate to care for their child. It is presumed that fit parents and unadjudicated parents make the best interest decisions for their child. So even when a State or CPS or DHS tries to get the parent to prove their fitness, if they have not adjudicated that parent properly, the parent does not have to prove anything to them. It is the burden of the State to prove authority over the parent.
- The state says that they determine best interest of the child.
- If the State has not invoked their authority properly they cannot sweep the rights of the parent under the rug and do as they please with any child. Their parens patriae authority must be properly triggered. A finding of unfitness or clear and present danger would trigger this.
- It is the State’s duty to prove that their authority is properly triggered.
- The trial court and CPS or DHS will often try to intimidate you to follow what they or even make you think that whatever they say trumps anything you claim to be your rights. If you don’t make them prove it, then they can get away with this. It can be difficult to find someone to help you challenge CPS or DHS, so if you end up doing this on your own, there is new caselaw out there that you can use called “In RE Sanders” as well as our book, “NOT in The Child’s Best Interest.” We also have equal protection arguments on our page here: https://fixfamilycourts.com/rights-made-simple/
So from now on, if the State did not find the biological parent unfit and that parent is trying to give you care, custody, or control of your grandchild, and you want to help that parent get out from under service plans and other excuses and delays that the State is creating to disadvantage you and that parent, then you will need the due process violation and equal protection arguments.
So if you are going to spend money helping the parent find legal representation then find one that understands these arguments. If they cannot understand them on their own, we can help them learn the argument so that they can use it.
Basically, the argument is that if the State did not find the parent unfit properly then they have violated due process and a fit parent has protected fundamental rights to the care, custody, and control of their child. That means even if the parent cannot take possession of the child, the parent can designate another adult to take possession of the child during their time, and they do not have to prove their choice of caretaker’s fitness. This is essentially no different than a married couple hiring a babysitter or sending their child to military school.
Additionally, the State does not get to invade your privacy and make you prove your fitness as a grandparent or a caretaker of the child. Child Protective Services don’t get to do this either.
This is a very basic summary of how your rights should work in the face of fit parents who want the grandparents to care for and raise their child.
If you would like more information or need one-on-one help, we can be contacted at www.fixfamilycourts.com/contact/.
You can also find more information about these arguments with case citations in our book as well “NOT in The Child’s Best Interest” at www.fixfamilycourts.com/products/
And you can watch a video where we talk about the biological parent’s rights here: CHALLENGING SERVICE ORDERS
Want the most powerful parental rights book, get it here: www.fixfamilycourts.com/products/
Twitter: https://twitter.com/fixfamilycourts (@fixfamilycourts)
YouTube: Sherry Palmer with Fix Family Courts www.youtube.com/channel/UC_kKO3Xc_UT7ZeNU6OkYK0g/