What rights does a grandparent have in the custody process?
It’s easy to forget how many people are affected by a divorce. It’s not just the immediate family, it’s all the extended network of relatives as well — including grandparents. No grandparent wants to see their children and grandchildren go through a tough separation — it can feel helpless at times. So what are grandparents rights to their grandchildren in Louisiana?
Believe it or not, grandparents rights in Louisiana have been a hotly-contested issue since the US Supreme Court handed down the landmark case Troxel v. Granville in 2000. The decision says there is a presumption “fit” parents make decisions that are in the best interest of the child. So first and foremost, a grandparent must overcome this presumption before anything else happens.
How do I get temporary custody for a grandchild in Louisiana?
In order for someone to understand grandparents rights in Louisiana, they have to understand the three statutes governing grandparents visitation rights. The first of which is R.S. 9.344, which is intended for grandparents who have lost the normal avenue for seeing their grandchild.
Normally this “avenue” is the parent of the grandchild. In order for a grandparent to have visitation considerations, the parent of the child must be declared one of three things:
Once those determinations have been made, the court can decide to give visitation rights to the grandparents even if the parents of the grandchild were not married. This applies to any siblings of the grandchild in question as well.
The second statute governing grandparents rights in Louisiana is Article 136 in Louisiana’s Civil Code. This deals with visitation rights to any blood relatives, including biological grandparents, during an “extraordinary circumstance”. An “extraordinary circumstance” can be a broad term, but one on-the-record example defined by Louisiana courts is when a parent is abusing a controlled dangerous substance.
But wait, these statutes conflict!
Indeed they do. One is looking out for the best interest of the child and the other is looking out for keeping a solid relationship between a child and their blood relatives. In a Louisiana court, the judge will always look to decide in the best interest of the child.
The third and final statute, article 1264 of the Children’s Code, states a grandparent can lose visitation rights if the grandchild is adopted. The only way a grandparent can block this is if they are the parents of the parent who has either died or has forfeited the right to object to an adoption.
Keep in mind the constitutionality of these statutes have been challenged multiple times in Louisiana state courts. These challenges aren’t going to end anytime soon either, so knowing a good New Orleans family law attorney can help you straighten out any questions you might have about Louisiana grandparents rights.
Can a grandparent sue for custody rights in Louisiana?
Yes, but you would be encouraged to try an easier and less problematic way of protecting your grandchildren.
Getting custody of your grandchildren can be pretty simple in the right situation. If the grandchild lives with the grandparent or the parents want the grandparent to take care of the grandchild, provisional custody can be awarded almost immediately.
Provisional custody can last up to one year at a time and has to be renewed by the grandparents in conjunction with the parents. However, if the parents are living and don’t agree to custody — a lawsuit is your only option for custody. From there, a judge would have to decide whether or not a grandparent should have legal custody based on the following circumstances:
- Length and quality of the grandparent-grandchild relationship
- Does the child need guidance only a grandparent can give?
- If the child is old enough, what their living preference is
- How willing the grandparent is to encourage a close relationship with the parent
- The mental and physical fitness of the grandparent and the grandchild