Visitations and custody petitions are typical issues that parents face in divorce, separation, or other special circumstances that affect family dynamics changes. In Louisiana, visitations and custody may be extended to a child’s biological grandparents and other non-parent relatives.
Can a Grandparent Seek Visitation with Their Grandchild?
Generally, yes, they can under certain circumstances.
Under Louisiana Civil Code 136, a relative, either by blood or affinity, which includes grandparents, is afforded legal rights to ask for reasonable visitation of their grandchildren under specific circumstances.
Specifically, biological grandparents can petition the court to grant them reasonable visitation rights under the following circumstances:
- Parents’ divorce,
- Parent’s physical separation for at least six months, or
- Following the death of one of the parents.
However, if a child’s parents are still together in a relationship, then non-parent relatives who are either related by blood or affinity, which includes grandparents and step-grandparents, may ask the court for visitation orders under “extraordinary circumstances.”
Such “extraordinary circumstances” exist when:
- One or both parents are imprisoned
- One or both parents are declared legally incompetent
- One or both parents are determined to be addicted to a dangerous controlled substance, or
- A child is placed in foster care due to a parent’s abuse or neglect.
Can a Grandparent Continue Visitation if the Grandchild is Adopted?
It depends.
Typically, an adoption transfers all legal rights from a child’s biological parents and relatives to the adoptive parents and family. However, as a biological grandparent, you may be granted visitation rights if its stepparent adopts the grandchild. Your child is the deceased parent, or you had established visitation rights before the adoption. You can demonstrate that it is in the child’s best interest to maintain a relationship with you.
However, it is important to note that a child’s surviving parent or stepparent can impose certain restrictions on a grandparent’s visitation schedule. This restriction could be valid even if the grandparents’ visitation order were established before the child’s adoption. Nonetheless, a grandparent can exercise limited visitation rights if they show that the surviving parent or adoptive stepparent has interfered with a previously ordered visitation schedule, especially if it is in the child’s best interest to continue spending time with their grandparents.
However, the court may not grant grandparent visitation rights if third-party non-relatives adopt the grandchild unless it is in the child’s best interest.
How Can a Grandparent Seek Visitation of Their Grandchild?
The grandparent seeking to ask for visitation has the “burden of proof” to show a legal right based on the circumstances listed above and their relationship to the child, and that a court-ordered time that their proposed visits are in the child’s best interest.
To seek a visitation order from the court, a grandparent must file a petition either with the court deciding on the matter or the adoption court that handled the child’s adoption. Aside from the steps listed below, the petition must include a proposed schedule of the court-ordered visitation. If a visitation order has already been established, a grandparent can seek a modification from the court if they wish to modify their time or if the child’s parent or adoptive parent is interfering with the visitation schedule.
A grandparent must establish the following to seek a court-ordered visitation:
- First, the relationship between the grandparent and the child must be established. If the child was born during the parents’ marriage, the biological relationship is presumed. However, if the child is born out of wedlock, then a blood test may be required to prove a biological connection between the grandparent and the child.
- Second, the grandparent must establish that it is in the child’s best interest to spend time with them. Supporting evidence could include:
- The past and current relationship of the grandparent with the child,
- The grandparent’s ability to guide and support the child in comparison with the child’s parents,
- The child’s wishes, and its maturity to express their preference,
- The grandparent’s willingness to encourage a relationship between the child and its parents;
- The grandparent’s physical and mental health, the child, the parents, and anyone else that may have filed for visitation or custody.
Can a Grandparent Seek Custody of Their Grandchild?
Yes, they can be granted custody under certain situations.
Under Louisiana Civil Code 133, a non-parent, which includes grandparents, can be granted custody of a child under extreme circumstances in the child’s best interest.
Louisiana courts automatically presume that the child’s custody must be with the natural parents unless there is ample evidence that can overcome that legal presumption by showing that it is in the child’s best interest to grant custody with a non-parent. Specifically, a grandparent can be granted custody of their grandchild if they can prove that the child is abused or neglected by its parent.
Moreover, parents can sign a Voluntary Transfer of Custody if they agree that the grandparents should be granted custody of the child. This form can grant either temporary or permanent custody and must be signed off by the court. If the parent changes their mind and seeks to regain custody of their child, they can do so by seeking the court’s approval.
A grandparent can also seek custody of a child if its parents are going through a divorce, provided that they can prove that the child is being neglected or abused.
How Can a Grandparent Petition for Custody of Their Grandchild?
First, the grandparent must file a petition with the court seeking custody of their grandchild.
Second, the grandparent must demonstrate through a presentation of arguments and evidence that it is not in the child’s best interest to grant custody to the child’s parents.
The court considers the following factors in determining whether the custody arrangement would serve the child’s best interest:
- the emotional ties between the child and the grandparent, and child and its parents;
- the Grandparent’s ability to meet the child’s emotional needs;
- the child’s existing living arrangement;
- the Grandparent’s, parents’, and the child’s physical and mental health;
- the child’s preferences, and its maturity to express its opinion;
- the distance between the Grandparent’s home and the child’s current residence; and
- the child’s connection to its current home, school, and community.
Navigating through the complex field of family law is not an easy task. You need an experienced family attorney to defend your rights and make sure that your grandchild’s best interest is preserved. If you need help to file a petition for a court-ordered visitation or custody of your grandchildren, please feel free to give us a call (225) 963-9638, or you can click here to contact us about scheduling a consultation.
We regularly handle divorce, child custody, child support, and other family law cases in the following parishes: Ascension Parish, Assumption Parish, East Baton Rouge Parish, East Feliciana Parish, Iberville Parish, Livingston Parish, Pointe Coupee Parish, St. James Parish, St. Helena Parish, West Baton Rouge Parish, West Feliciana Parish.
We regularly handle divorce, child custody, child support, and other family law cases in the following cities: Baton Rouge, Clinton, Convent, Denham Springs, Donaldsonville, Gonzales, Greensburg, Livingston, Napoleonville, New Roads, Plaquemine, Port Allen, St. Francisville.