Recently we posted about grandparent custody and visitation rights in the context of a terminally-ill parent who would like for his or her parents to take custody after death: Grandparent Rights.
An equally challenging situation arises when the grandparent and parent are in opposition to one another over custody of a child. This firm recently represented a grandparent who obtained primary custody of their grandchild, with the parents having only visitation rights. Today, the Court of Appeals ruled in favor of the grandparent; the full opinion can be read here: Barber v. Driggers. When a grandparent seeks custody, the court does not only consider whether they can offer a better home environment than the parents. Parents have a constitutionally-protected “paramount status.” This status means that the parent has a superior claim to custody over a non-parent, unless the parent does something non-parental.
The most obvious examples involve a parent who has neglected his child. That is what happened in this Barber v. Driggers. The mother not only raised the question of which home was in the child’s best interests, but she also raised the issue of whether she had forfeited her constitutionally-protected paramount status. Fortunately we were able to successfully argue that the evidence supported the findings that the mother had in fact forfeited that status.
Parents can forfeit their paramount status in other ways, however, which do not involve mistreating the child. The most common way to do this is to place a child in a domestic environment in which the child forms a parent-like bond with a non-parent. A parent who moves in with her parents can forfeit her paramount status as to those grandparents, if the grandparents become parent-figures. Likewise, a parent who has a live-in partner can forfeit her paramount status as to that partner, in which case the court will determine custody as if the parent and non-parent have equal claims on the child.