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Grandparent suing for custody from surviving parent.

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moni0121

Junior Member
What is the name of your state (only U.S. law)? IA

Paternal grandparent suing for custody from mother, after the father has committed suicide. They were not married. They lived together until approximately a week before he took his life. Mother is recently unemployed, due in part to the effect the suicide has had on her. Her mother also committed suicide when she was very young. The mother and child now live with mother's current boyfriend, and the mother lets the grandparent have her on most weekends.

She has not been served, yet, so I don't know what the exact reason is for his getting custody, but I'm sure that he'll say she's unfit. How he's going to prove this, I don't know, but he'll do it anyway he can. Grandparent has unlimited funds, and my sister, without a job, has none. What option does she have?

The mother in question happens to be my little sister, and I am asking for advice to help her out as she does not have internet access. I have already advised her to call Legal Aid of Iowa immediately. Other than that, I don't know what to tell her.
 
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LillianX

Senior Member
It's sad that Grandpa is essentially blowing his chances at seeing his grandchild. In cases where one parent passes away, grandparents sometimes try to assert themselves and ensure that they're able to see their grandchild as much as possible for a few reasons, not the least of which is that the grandchild is one of their few tangible connections to their deceased child. Another factor is fear that now that their child is gone, the unrelated parent may not allow them to see their grandchild so much. In the majority of situations, all that needs to happen is for the grandparent to be polite, loving and understanding about the situation, and they'll see plenty of their grandchild. Some grandparents don't understand this, and instead decide to head straight to the courthouse to attempt to gain custody of their grandchild. These grandparents are rarely successful.

Absent a clear, well documented history of abuse or neglect on the part of the child's mother, the grandfather has no chance of winning custody. In fact, unless the mother is unfit to make a decision about visitation, he probably wouldn't even win visitation.

These cases are so, so sad. Grandpa just wants to ensure he sees his grandchild, and doesn't understand that alienating the mother of the child is the best way to ensure he NEVER sees the kid.
 

Ohiogal

Queen Bee
It's sad that Grandpa is essentially blowing his chances at seeing his grandchild. In cases where one parent passes away, grandparents sometimes try to assert themselves and ensure that they're able to see their grandchild as much as possible for a few reasons, not the least of which is that the grandchild is one of their few tangible connections to their deceased child. Another factor is fear that now that their child is gone, the unrelated parent may not allow them to see their grandchild so much. In the majority of situations, all that needs to happen is for the grandparent to be polite, loving and understanding about the situation, and they'll see plenty of their grandchild. Some grandparents don't understand this, and instead decide to head straight to the courthouse to attempt to gain custody of their grandchild. These grandparents are rarely successful.

Absent a clear, well documented history of abuse or neglect on the part of the child's mother, the grandfather has no chance of winning custody. In fact, unless the mother is unfit to make a decision about visitation, he probably wouldn't even win visitation.

These cases are so, so sad. Grandpa just wants to ensure he sees his grandchild, and doesn't understand that alienating the mother of the child is the best way to ensure he NEVER sees the kid.
That is not true. Grandpa very likely WILL win visitation due to his child's death. Custody not so much. I find it interesting in OP's post that she is currently unemployed due to the effect of the suicide yet she is already living with another man and sharing his bed. Apparently the suicide wasn't enough to stop her love life. Just her employment. Go figure.
 

mistoffolees

Senior Member
What is the name of your state (only U.S. law)? IA

Paternal grandparent suing for custody from mother, after the father has committed suicide. They were not married. They lived together until approximately a week before he took his life. Mother is recently unemployed, due in part to the effect the suicide has had on her. Her mother also committed suicide when she was very young. The mother and child now live with mother's current boyfriend, and the mother lets the grandparent have her on most weekends.

She has not been served, yet, so I don't know what the exact reason is for his getting custody, but I'm sure that he'll say she's unfit. How he's going to prove this, I don't know, but he'll do it anyway he can. Grandparent has unlimited funds, and my sister, without a job, has none. What option does she have?

The mother in question happens to be my little sister, and I am asking for advice to help her out as she does not have internet access. I have already advised her to call Legal Aid of Iowa immediately. Other than that, I don't know what to tell her.
First question - was paternity ever legally established? DNA test, acknowledgment of paternity, etc?

Ordinarily, I'd agree completely with Lillian. In this case, I agree, but there are some complicating factors.

In many states, there is a doctrine called de facto parent status. The principle is that if someone is acting in a parental role or has major ties to the child, that person might gain some custodial rights. In those states, it is probably in the parent's interests to keep the kids away from the grandparents - because the more time the child spends with the grandparents, the stronger the bond and the easier it is for the parents to make a case. This is unfortunate, but the parent's interest is to keep the kids away from the grandparents in order to avoid losing rights.

Iowa is unusual in that their rules are the opposite:
Grandparents Rights and Grandparent Visitation Rights
Other states set more stringent requirements allowing grandparents to file a suit only if they were denied visitation altogether. Under current laws in Alabama, Florida, Iowa, Mississippi, Oregon, Rhode Island and Utah, grandparents don't have a case if parents permit them to see their grandchildren — no matter how infrequently.
So, it appears that in Iowa, your sister is doing the right thing - by allowing the grandparents to have visitation with the child, she is eliminating any grounds they would have to sue for custody or visitation.

However, she should definitely talk with a local attorney to confirm this.
 

mistoffolees

Senior Member
That is not true. Grandpa very likely WILL win visitation due to his child's death.
Apparently not in Iowa. From the source I cited above, the grandparents only have grounds to sue for visitation if the parent is denying visitation.


Grandparents' rights and de facto parent issues probably vary more between states than any other issues we commonly face.
 

mistoffolees

Senior Member
This is the site I refer to:
Grandparent Visitation
Let's look at the 3 cases:

Spiker:
"“[G]iving continued effect to the [visitation order] is unjust,” Restatement (Second) of Judgments § 73(2), at 197, because it constitutes a continuing violation of Sherry’s constitutional right as a mother to make decisions regarding her children’s well-being absent a showing of harm to them or her unfitness."
and:
"The district court determined the visitation order was subject to modification, and it terminated the visitation. We agree and affirm the judgment of the district court."

Howard:
"In Santi v. Santi, 633 N.W.2d 312 (Iowa 2001), we determined that at least one subsection of the Iowa grandparent visitation statute was unconstitutional on its face. In this appeal, we revisit the question of the statute’s constitutionality to determine whether the section of the statute permitting a petition for grandparent visitation when the parents of a child are divorced is also unconstitutional. We conclude that it is unconstitutional on its face, and we reverse the decision of the district court and dismiss this petition for grandparent visitation."

Santi:
"On our de novo review, we agree that the statute cannot withstand strict scrutiny under article I, sections 8 and 9 of the Iowa Constitution. We therefore affirm the court’s dismissal of the grandparents’ petition, a decision rendering moot the parents’ cross-appeal."

In all three cases, the grandparent's right to visitation was stricken.

At one point, IA had a law giving grandparents visitation rights, but it was ruled unconstitutional.
 

CJane

Senior Member
This is the site I refer to:
Grandparent Visitation
Because the three cases linked through that site are ones where the courts were finding the previous statute unconstitutional and stripping the grandparents of visitation rights, I thought I'd post the relevant current statute.

600C.1 GRANDPARENT AND GREAT-GRANDPARENT
VISITATION.
1. The grandparent or great-grandparent of a minor child may
petition the court for grandchild or great-grandchild visitation.
2. The court shall consider a fit parent's objections to granting
visitation under this section. A rebuttable presumption arises that
a fit parent's decision to deny visitation to a grandparent or
great-grandparent is in the best interest of a minor child.

3. The court may grant visitation to the grandparent or
great-grandparent if the court finds all of the following by clear
and convincing evidence:

a. The grandparent or great-grandparent has established a
substantial relationship with the child prior to the filing of the
petition.
b. The parent who is being asked to temporarily relinquish
care, custody, and control of the child to provide visitation is
unfit to make the decision regarding visitation.

c. It is in the best interest of the child to grant such
visitation.

I don't think the grandparent's likelihood of winning is as good as previously stated.
 

Ohiogal

Queen Bee
Because the three cases linked through that site are ones where the courts were finding the previous statute unconstitutional and stripping the grandparents of visitation rights, I thought I'd post the relevant current statute.

600C.1 GRANDPARENT AND GREAT-GRANDPARENT
VISITATION.
1. The grandparent or great-grandparent of a minor child may
petition the court for grandchild or great-grandchild visitation.
2. The court shall consider a fit parent's objections to granting
visitation under this section. A rebuttable presumption arises that
a fit parent's decision to deny visitation to a grandparent or
great-grandparent is in the best interest of a minor child.

3. The court may grant visitation to the grandparent or
great-grandparent if the court finds all of the following by clear
and convincing evidence:

a. The grandparent or great-grandparent has established a
substantial relationship with the child prior to the filing of the
petition.
b. The parent who is being asked to temporarily relinquish
care, custody, and control of the child to provide visitation is
unfit to make the decision regarding visitation.

c. It is in the best interest of the child to grant such
visitation.

I don't think the grandparent's likelihood of winning is as good as previously stated.
Thanks Cjane and Misty. I was looking for it.
 

LillianX

Senior Member
Because the three cases linked through that site are ones where the courts were finding the previous statute unconstitutional and stripping the grandparents of visitation rights, I thought I'd post the relevant current statute.

600C.1 GRANDPARENT AND GREAT-GRANDPARENT
VISITATION.
1. The grandparent or great-grandparent of a minor child may
petition the court for grandchild or great-grandchild visitation.
2. The court shall consider a fit parent's objections to granting
visitation under this section. A rebuttable presumption arises that
a fit parent's decision to deny visitation to a grandparent or
great-grandparent is in the best interest of a minor child.

3. The court may grant visitation to the grandparent or
great-grandparent if the court finds all of the following by clear
and convincing evidence:

a. The grandparent or great-grandparent has established a
substantial relationship with the child prior to the filing of the
petition.
b. The parent who is being asked to temporarily relinquish
care, custody, and control of the child to provide visitation is
unfit to make the decision regarding visitation.

c. It is in the best interest of the child to grant such
visitation.

I don't think the grandparent's likelihood of winning is as good as previously stated.
Just because I'm stubborn, I feel the compulsion to state that I totally said that. I didn't link a statute though, so you rock!
 

mistoffolees

Senior Member
Because the three cases linked through that site are ones where the courts were finding the previous statute unconstitutional and stripping the grandparents of visitation rights, I thought I'd post the relevant current statute.

600C.1 GRANDPARENT AND GREAT-GRANDPARENT
VISITATION.
1. The grandparent or great-grandparent of a minor child may
petition the court for grandchild or great-grandchild visitation.
2. The court shall consider a fit parent's objections to granting
visitation under this section. A rebuttable presumption arises that
a fit parent's decision to deny visitation to a grandparent or
great-grandparent is in the best interest of a minor child.

3. The court may grant visitation to the grandparent or
great-grandparent if the court finds all of the following by clear
and convincing evidence:

a. The grandparent or great-grandparent has established a
substantial relationship with the child prior to the filing of the
petition.
b. The parent who is being asked to temporarily relinquish
care, custody, and control of the child to provide visitation is
unfit to make the decision regarding visitation.

c. It is in the best interest of the child to grant such
visitation.

I don't think the grandparent's likelihood of winning is as good as previously stated.
Especially since the above statute was found to be unconstitutional as cited above.
 

CJane

Senior Member
Especially since the above statute was found to be unconstitutional as cited above.
No. The above statute is the NEW one that REPLACED the one that was found to be unconstitutional.

The one that was found to be unconstitutional was 583.5 (I believe) and it was repealed in 2006. 600C.1 was enacted in 2007.
 

moni0121

Junior Member
I thank you for your replies. They've been helpful. I shall forward them to my sister.

I haven't received an answer from her on the paternity/DNA test, so I don't know about that, yet.

My sister left this guy because he was abusive to her. There should actually be police records from domestic abuse calls. But, that may not be relevant in this particular case. I don't know.
 

LdiJ

Senior Member
I thank you for your replies. They've been helpful. I shall forward them to my sister.

I haven't received an answer from her on the paternity/DNA test, so I don't know about that, yet.

My sister left this guy because he was abusive to her. There should actually be police records from domestic abuse calls. But, that may not be relevant in this particular case. I don't know.
If your family can rally around your sister and help her get an attorney, that really would be the best help you could give her.

The grandparent should have no hope whatsoever of winning this case, but if you have a grandparent with unlimited funds...it could be problematic.
 

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