Law permits on certain conditions the child custody to the grandparents. Being the father and the mother is a natural guardian, the custody of the child remains with them. Grandparents were granted child custody in certain circumstances and conditions.
Most Common Reasons Grandparents Can File for Custody of Grandchild
Parental rights are strongly protected under the law. As a result, a grandparent is usually eligible to get custody only when the parents choose to transfer it or when the parents are unable to raise the child.
Here are some of the most common reasons grandparents can file for custody of grandchild.
Death of the Parent(s)
If a parent dies, the surviving parent, if willing and able to do so, typically becomes the parent with custody. In the event that one or both parents are deceased, grandparents may be eligible to file for custody.
The grandparents will be named guardians by the probate court if the parent or parents left a will designating them as the guardians in the case of death and the grandparents are able to care for the child. If the parent(s) did not name a guardian before passing away, then grandparents can petition for custody—but so can other close family members who may be interested in raising the children. If there is a dispute over who should be awarded custody, the court will make a decision that is in the best interests of the child.
Consent of the Parent(s)
Sometimes, parents may wish to give their grandparents temporary or permanent custody of their kid. If this serves the child’s best interests, the courts will sanction it.
If a parent is unable to care for their children and does not anticipate that situation changing, they may transfer custody permanently. In order to revoke parental rights, both parents must consent if they are both still alive and well. The only parent who can make this decision is if only one parent is living or known. Alternatively, parents may sometimes want to temporarily transfer custody. This could occur, for example, if they are serving in the military or are to be incarcerated and unable to care for their children for a period of time. This does not involve a termination of parental rights but is a temporary transfer of legal authority over the child.
Alternatives to Applying for Custody of a Grandchild
However, grandparents do have options to request court-ordered visitation—although, even visitation is not a guarantee.
State laws vary as to when grandparents may petition for visits, but typically it is possible in the following situations:
1.The child’s parents are separated or divorced or a petition for divorce has been filed
2.One or both of the child’s parents are deceased
3.One or both of the parents have lost custody of the child
4.The child lived with the grandparents for a year or more
In most states, grandparents cannot petition for visiting rights if both parents reside together as a “intact family.” Whether or not seeing grandparents is best for the child is a decision that belongs to the parents.
If a grandparent is eligible to apply for visitation, they must still prove that the grandchild’s attendance is in the child’s best interests.
Our son got divoce from his wife, 7 yr old son is with mother. Can we as grand parents ask hon,ble court for visitin right of the child. The child was in our family 6 yrs continiously . Please advice.
I would like to address your concern regarding your visitation rights as grandparents to your grandson, who is currently living with his mother after your son’s divorce. In Indian law, there are provisions and judicial precedents that support the rights of grandparents to seek visitation with their grandchildren.
Under the Guardians and Wards Act, 1890, Section 25 allows the court to intervene in matters concerning the custody and welfare of a minor. The primary consideration for the court is the welfare of the child, which includes maintaining the child’s emotional and psychological well-being by ensuring contact with extended family members who have played a significant role in the child’s life.
In several landmark cases, Indian courts have recognised the importance of the grandparent-grandchild relationship. For example, in the case of Shyamrao Maroti Korwate vs. Deepak Kisanrao Tekam (2010), the Bombay High Court granted visitation rights to grandparents, emphasising the significance of their role in the child’s upbringing and emotional support.
Additionally, under Section 12 of the Family Courts Act, 1984, you can file an application for visitation rights. The court, while deciding such applications, will consider the best interest of the child, which includes the child’s need to maintain a loving relationship with his grandparents, especially given the fact that he spent the first six years of his life with you.
It is advisable to file a petition in the Family Court stating your case, highlighting the continuous and significant role you have played in your grandson’s life, and emphasizing how maintaining this relationship is beneficial for his overall development and well-being. Provide evidence of your involvement in his upbringing, such as photographs, school records, and any other documentation that shows your active participation in his life.
In summary, Indian law and judicial precedents favour the maintenance of familial bonds that are in the best interest of the child. You have a strong case to request visitation rights based on the close relationship you have had with your grandson for the majority of his life.
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