What Rights do Grandparents Have in a Louisiana Child Custody Case?
In 2008, Frances Cain of Baton Rouge received a call from the Louisiana Department of Family & Child Services (DCFS), asking her if she could take custody of her grandchildren. Both their parents were in prison, and no other family member would take them. Picturing a future where the grandchildren would never know her, she pleaded with the state worker to let her have them.
That began a seven-year fight to officially gain full custody of the grandchildren, during which Frances shed many tears. She learned it takes significant effort and persistence to gain guardianship of minor children in need. Frances needed to understand what rights grandparents have in a Louisiana child custody case, so she turned to the guidance of an experienced family law attorney.
Louisiana Laws Governing Grandparents and Custody
More than 67,000 children in Louisiana live with their grandparents, according to the US Census Bureau. That means one in every 11 children is not with their parents as older family members step up to provide housing, care, and support for a stable home life. The battle to win custody can be lengthy and frustrating for the grandparents.
Louisiana Civil Code art. 136 outlines the situations in which grandparents can obtain custody, including when the parents are imprisoned or deceased. The circumstances don’t have to be as dire as with Frances’ grandchildren. There are many instances in which grandparents can seek the right to see and care for their grandchildren. There are even groups that can assist and provide information on what to do.
Grandparents can file for rights to visitation or custody when:
- The parents are seeking a divorce, and the grandparents can demonstrate that the child’s best interests are served by granting visitation.
- The parent who is the grandparent’s child dies, whether the parents were seeking divorce or not. This also applies if the parents are not married.
- The parents are married but have been separated for more than six months.
- The child has entered or is about to enter the foster care system because of parental abuse or neglect.
In all instances, a family court judge considers factors such as the length of the relationship between the grandparents and grandchildren. They also look at what level of guidance and financial support the grandparents can provide, as well as their age and health. The court also asks the grandchildren to express their wishes regarding custody.
While any family member related by blood or marriage can ask for time with the children, only biological grandparents have the legal right to request visitation after divorce or the death of their child (the grandchild’s parent).
Extraordinary Circumstances for Requesting Custody
In situations where the child faces abuse or neglect by the parents, the grandparents may file a protective order as an emergency measure to remove the children from harm. This is a stopgap effort that allows grandparents to request temporary custody immediately. They will attend a hearing within 30 days and must show evidence of the abuse or neglect. If successful, the grandparents can be granted custody for 6-19 months.
When children are at risk of being put into foster care due to abuse, Louisiana DCFS makes every attempt to place them with family members. At this point, grandparents can have temporary custody until the state determines whether the children can return to their parent’s care. If that seems unlikely, grandparents may request custody through two paths.
Voluntary Transfer of Custody
When the parents become or expect to be unavailable to care for their children, they can sign a Voluntary Transfer of Custody to the grandparents. This essentially releases their parental rights, although it is not the same as adoption. This agreement can be temporary or permanent. Parents who later change their minds must petition the judge in family court to regain custody of their children.
Provisional Custody by Mandate
This option is similar to a Power of Attorney. Parents entering situations such as imprisonment or a treatment facility could choose to award this custody to grandparents until they return. It does not transfer legal custody and can be revoked at any time by the parent. The form must be signed by two witnesses, notarized, and renewed each year.
This custody agreement empowers grandparents to enroll children in school and make decisions about their medical care. However, some Louisiana parishes mandate legal custody for grandparents to be able to enroll children.
When grandparents adopt their grandchildren, the parents’ rights are terminated, although parents may still be granted visitation rights. They are also required to financially support their children, paying funds to the grandparents for the children’s maintenance. Adoption may be the next step after the provisional custody by mandate order if parents voluntarily permit it.
In some instances, the grandparents are eligible to adopt even if the parents have not voluntarily surrendered their rights. Grandparents may file an adoption request if they have had physical or legal custody of the grandchildren for a minimum of six months and either:
- The parents failed or refused to comply with the court’s order of support without just cause for six months or more, or
- Both parents have failed or refused to visit or communicate with the grandchild for at least six months.
Grandparents can also petition the court to adopt the grandchildren if they can prove that it is in the best interest of the health and wellbeing of the children.
When a Stepparent Adopts a Grandchild
Divorce or the death of a parent can put visitation rights into turmoil. In most instances, grandparents can maintain their previous access to their grandchildren, even if their child is the parent who passed away. However, if their child remarries and the stepparent adopts the grandchildren, visitation rights will transfer to the new adoptive grandparents.
The exceptions to this are if the deceased parent is the grandparent’s child, or if the grandparent already had a legally binding visitation agreement. While most families work this out for themselves, there are times when the surviving parent or the new stepparent interferes with the grandparent’s time with the grandchildren.
To protect their visitation rights, grandparents must demonstrate to a judge that maintaining their connection benefits the grandchildren. Again, a qualified family law and custody lawyer can advise on how to collect evidence and file the necessary paperwork to achieve a satisfactory agreement.