It's hard to believe that it's been more than two months since Michael Jackson died, particularly since the news stories are still coming fast and furious about all aspects of his life, his death and his children.
When Katherine Jackson, Michael's mother, was granted permanent custody of her three grandchildren, it spotlighted a situation that's become increasing common. More and more grandparents have custody of their grandchildren.
The case with Michael Jackson's kids is interesting because their biological mother is alive. If someone is a fit parent–they're alive, willing and able to care for their child–then courts usually want to grant custody to that parent. A grandparent usually has no legal right to custody if the child's parents are fit, nor would a court award custody to grandparents just because they would be better custodians of their grandchild.
Given that Katherine Jackson was awarded full custody of her grandchildren without a protracted court battle, it's safe to assume that the children's biological mother voluntarily decided to give up her custody rights. From a legal perspective, when the custodial parent dies, then custody of the child automatically goes to the non-custodial parent, unless he or she has been found to be unfit. Even in states that allow grandparents to seek custody of a grandchild who is not in the custody of a parent, the mere presence of the child with the grandparents at the time of the custodial parent's death does not add to the grandparents' rights.
Now that Michael Jackson's children have been placed with their grandmother, if their biological mother wanted to regain custody, she would have to show that the change is in the best interests of the children and show a change in circumstances sufficient for a change of custody.
The US Census Bureau says that 9 percent of all children in the United States live with at least one grandparent. Of those children who live with grandparents, 77 percent also have a parent living in the house with them, but in 23 percent of the cases, the parent is absent. If a child has lived with his or her grandparents for an extended period of time, the grandparents may have a strong claim to custody because their grandchildren may view them as parents.
The laws relating to grandparents and custody vary from state to state. For example, in Texas, a grandparent can only seek custody of a child if the parent with custody has voluntarily given up possession of the child. In New York, a grandparent cannot seek custody of a grandchild if the parents voluntarily give up their parental rights and the grandchild is made available for adoption.
Visitation Issues
When you become a grandparent, you'd probably never expect to have to go to court to request custody or visitation rights to your grandchild. However, it's becoming increasingly frequent.
Traditionally, courts used to only grant visitation rights to a child's parents. Today, the laws have changed. Currently, most state laws give visitation rights to grandparents if it is in the child's best interest to maintain an established relationship.
Various circumstances will give grandparents the right to request visitation. In most states, the general rule is that visitation will not be granted in an ongoing, intact marriage. Two common circumstances that permit grandparents to request visitation are the death of a parent and the parents' divorce. In adoption cases, some states allow visitation following adoption, but other states say that grandparents' rights are terminated by the adoption.
Custody and visitation issues can be very complex. If you are a grandparent who is seeking custody or visitation rights, it makes sense to talk to an attorney with child-custody experience in the state where your grandchild lives.
For more information on these matters, please call our office at 305 548 5020.
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