Grandparent Rights- It All Comes Down To The Best Interest Of The Child

According to the United States Supreme Court, being a parent is a fundamental right. This is a long-protected right and as far back as 1923, the Court stated: “liberty” protected by the Due Process Clause includes the right of parents to “establish a home and bring up children” and “to control the education of their own.” Thus, the law in Nevada, and every other state, provides considerable statutory emphasis to ensuring that parents, if possible, maintain that right. The mechanism to ensure that parental “liberty” in Nevada is the multi-pronged “parental preference” statute, and any person who wants to obtain custody of a child other than a parent, with certain exceptions, must overcome that preference. This represents a very formidable burden for anyone who is not a parent, and thus far, the law bundles grandparents into this same mix, with everybody else who is not a parent.

The Law Gives Parents Preferential Treatment

Because being a parent is a fundamental right, attempts by state legislatures in several states to provide more custody rights for grandparents have been declared unconstitutional as an undue and additional burden on parental rights. The bottom line therefore, is that if a parent is fit and proper, the law assumes and creates a strong preference that it is in the best interest of children to be with their parents, and neither the state, nor anybody else, has the right to interfere with that parent/child relationship. By corollary, this also means that grandparents, since the law views them in the same manner as any other non-parent, do not have legal rights to obtain custody from a fit parent.

The parental preferences are a lengthy list of factors called “extraordinary circumstances” which must be proved prior to granting custody to a nonparent. In Nevada, the extraordinary circumstances necessary to overcome the parental preference presumption are those which result in serious detriment to the child. Those non-exclusive factors include:

• abandonment or persistent neglect of the child by the parent;

• likelihood of serious physical or emotional harm to the child if placed in the parent’s custody;

• extended, unjustifiable absence of parental custody;

• continuing neglect or abdication of parental responsibilities;

• provision of the child’s physical, emotional and other needs by persons other than the parent over a significant period;

• the existence of a bonded relationship between the child and the non-parent custodian sufficient to cause significant emotional harm to the child in the event of a change in custody;

• the age of the child during the period when his or her care is provided by a non-parent;

• the child’s well-being has been substantially enhanced under the care of the non-parent;

• the extent of the parent’s delay in seeking to acquire custody of the child; the demonstrated quality of the parent’s commitment to raising the child; the likely degree of stability and security in the child’s future with the parent;

• the extent to which the child’s right to an education would be impaired while in the custody of the parent;

• and any other circumstances that would substantially and adversely impact the welfare of the child.

If Parents Are Unfit To Have Custody

It is not all bleak for grandparents however, as the law does provide for considerably more leeway for those seeking only visitation with their grandchildren. Regarding visitation, initially, predictably, the courts start from the proposition that if a fit parent decides to deny the grandparents visitation, it is assumed to be in the best interest of the child. However, if a grandparent has previously obtained an order of custody, or visitation, then the parental preference statutes do not apply, and the parent does not get the benefit of that considerable assumption to prevent visitation. The reason for this is that since the grandparent(s) obtained a custody or visitation order previously, they have already overcome the parental preference.

The List Of Alternative Custodians

In Nevada, if a court determines that it is not in the best interest of the child for the parents to obtain custody, the law provides a list of persons for the court to award custody or visitation to a non-parent. First on that list is someone who has previously provided a “wholesome and stable environment” for the child. This means that at some point, the child has resided with that person, very likely a grandparent, for sufficient time that evidence can be submitted which prove that the grandparent has in fact provided a wholesome and stable environment for that child. Next, if parents are for some reason deemed unfit to have custody, is a more distant relative of the child, “within the fifth degree of consanguinity to the child whom the court finds suitable and able to provide proper care and guidance for the child, regardless of whether the relative resides within this State.” (NRS 125C.0035). Note that this preference permits a potential removal of the child from Nevada. Finally, because best interest of the child is the overriding consideration, custody can ultimately be awarded to any person who is found to be suitable and able to provide proper care and guidance for the child. However, prior to awarding custody to any non-parent, a court must specifically find that it would be detrimental to the child to make an award to a parent.

If The Child Has Been Subjected To Abuse And Neglect

Similarly, in situations where a child is subjected to actual abuse and/or neglect, a parent can be judicially determined to be unfit, and custody can be awarded to a nonparent. This can also occur if a parent becomes too sick to care for a child. In abuse and neglect scenarios, a grandparent will frequently be considered as a potential “adoptive resource”. Again, however, a parent must be given the opportunity to rehabilitate their behavior, and the courts will only move to terminate the parental right of that parent if they fail in that regard. Thus, it is a mixed bag for grandparent rights and opportunities for custody and visitation can reach fruition, but only if parents are judicially determined to be deficient in parenting in some way.

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