Grandparents can request physical or legal custody of a child if they already have legal status that allows them to act as the child’s parent (this is called in loco parentis) or under specified other circumstances. These circumstances are that the grandparent-child relationship began with a parent’s consent or under a court order, the grandparent is willing to assume responsibility for the child, and one of the following conditions exists:

  • the child is a dependent child
  • the child is substantially at risk due to parental abuse, neglect, drug or alcohol abuse or incapacity, or
  • the child has resided with the grandparent for at least 12 consecutive months, excluding brief temporary absences of the child from the home, and is removed from the home by the parents, in which case the grandparents’ action must be filed within six months.

Grandparents may also request partial physical custody or supervised physical custody if the parent of the child has died, the parents have either been separated for at least six months or filed for divorce, or the child has lived with the grandparent for at least 12 months. Under these limited circumstances, the court will decide a grandparent’s right to custody based on the amount of personal contact between the child and grandparent, whether custody to the grandparent would interfere with any parent-child relationship, and again, the best interest of the child.