Personal Injury Law

Toledo, Ohio dog bite attorney Dale Emch grandparents' rights

By Chuck Boyk

Do you have the right to take custody of your grandchild if something happens to the child's parents? Toledo, Ohio car accident lawyer Dale Emch discusses the custody rights of grandparents in his most recent Legal Briefs column. If you have a general legal question on topics such as car accidents, dog bites, or wrongful death, contact Attorney Dale Emch.

Dear Dale: We have an 8-year-old grandchild who lives several hundred miles away. Our son and her mother were never married. Our son passed away when our granddaughter was 6 months old.
Her mother recently lost custody of our granddaughter to the state. The state gave temporary custody to her mother’s ex-husband, who also has custody of our granddaughter’s half-brother. We were told if we want to get custody, a home study and background check would have to be conducted, and even then there was no guarantee our granddaughter would be placed with us.

Should we start checking into getting an attorney to help us if we want legal custody or should we just see how things play out?

Answer: The U.S. Supreme Court has held that parents have a fundamental right to make decisions affecting the care, custody, and control of their children. In certain instances, such as when a child may be in danger or when abuse or neglect can be shown, the state can interfere with that fundamental right.

When that happens, the state can seek custody of a child and make decisions about where the child should live. In custody situations, the default position of judges faced with these difficult cases is to make a determination as to what would be in the best interests of the child.

No exact formula exists to determine what would be in the best interest of a child. Some of the factors judges consider are the relationship the child has with his parents, siblings, or foster caregivers, the wishes of the child, and the stability of the proposed home setting. Judges hear evidence on those issues and try to make a decision that would be best for the child. That’s not an easy job in many cases.

In your situation, it seems that the major factor will be whether the state seeks to permanently terminate the parental rights of your granddaughter’s mother. That’s a huge step that courts don’t take lightly. Parents have a constitutional right to make child-rearing decisions, so a high burden of proof must be met in order to terminate a parent’s right to custody.

It’s possible that the state agency in charge of this case may want to reunite your granddaughter with her mother. If her mother has a drug problem or a mental illness that she might be able to address, the agency may have a plan that will allow her to regain custody if she meets certain requirements. If that’s the case, it seems likely that they’re going to look for the most stable situation for your granddaughter until her mother is able to regain custody. In such a scenario, the agency’s plan may even call for some type of controlled visitation with her mother.

If, however, the state seeks to terminate the mother’s parental rights, it’s going to try to find the best permanent home for your granddaughter. In that case, your granddaughter is old enough to express her wishes about where she wants to live and a person may be appointed by the court to weigh in on what would be in her best interests. The judge could determine that it’s best to stay with the mother’s ex-husband if he’s helped raise her, and because she has a half-brother.

On the other hand, the judge may give deference to your request for custody because of the blood connection between you and your granddaughter.

I think you’re probably getting the idea that there’s no way to determine where your granddaughter will be placed. For that reason, if you’re serious about seeking custody, you absolutely should retain a lawyer in the area where your granddaughter lives who has a lot of experience with child-custody issues. You need someone who understands the law and, preferably, someone who is well-known to the court handling the case. You might start by calling the bar association in the city where your granddaughter lives.

I’d recommend that you hire an attorney as soon as possible so you can explore whether it makes sense to intervene in the temporary custody situation if that’s possible. Showing an early interest can only help if the state seeks to terminate the mother’s parental rights. I would think it would be to your benefit if the judge and the agency know you’re in the picture and that you have a real desire to raise your granddaughter.

Full post as published by Sandusky Personal Injury Lawyer on December 02, 2008 (boomark / email).