Child Custody and Grandparents' Custody Rights

Author: OncoLink Team
Content Contributor: Christina Bach, MBE, MSW, LCSW, OSW-C
Last Reviewed:

What is child custody?

Child custody is a decision by a court-related to which parent, relative or other adult should have physical and/or legal control and responsibility for a child under the age of 18. There are two types of custody, legal custody and physical custody. The most important factor in custody decisions is the best interest of the child.

Legal Custody

  • A person with legal custody has the right to make important long term decisions regarding the child.
  • This can include aspects of the child’s upbringing including education, medical and dental care and religious upbringing.
  • Usually, parents are given joint legal custody. This means that the parents must share in decision making and have equal rights/access to the child’s medical and educational records.
  • A parent who does not have primary physical custody and/or visitation rights cannot be left out of decision making of any major issues regarding the child.

Physical Custody

  • Physical custody is an agreement/court order that outlines the division of the physical care of a child.
  • This encompasses where the child will live.
  • When the child is in the physical custody of a parent, relative or other adult, that “custodian” is responsible for the day to day needs of the child.
  • Primary physical custody is usually given to the custodian whom the child lives with the majority of time/spends the most time with. This can include sole physical custody, in which the child is with the custodian at all times in their home.
  • Joint physical custody is when the child splits their time between each custodian’s residence. The goal is for this to be as close to a 50/50 split of time as possible.
  • Non-custodial parents can be given visitation time with their child without having physical custody.

Grandparents’ Custodial Rights

  • Usually, courts want a child to be with one or both of their biological parents. If this is not possible, grandparents can legally get involved and petition for physical and/or legal custody. Grandparents do not have automatic custody rights.
  • Grandparents’ rights vary from STATE TO STATE. It’s important to look at your state law to guide what your rights may be. More information about specific state laws about grandparents custody rights can be found here.
  • As with physical/legal custody determination, the best interest of the child is at the center of the decision.
  • Any decision for grandparent partial custody/visitation should not interfere with the child-parent relationship.
  • When making decisions about grandparents’ custody rights, the courts may take into account: the child’s emotional, physical and emotional well-being, the past relationship between the child and grandparents; depending on age, the preference of the child, and the potential impact of the custody/visitation decision on the child’s schooling, extracurricular activities and social growth and development. 

Child custody is a serious and complex topic with the potential for long term impact on all parties involved. If possible, consult with a family law specialist when considering any legal action. Legal consultation can be expensive, but legal aid and community legal assistance are available in many areas. Many cancer centers have relationships with law schools or medical-legal partnerships (MLP) to assist cancer patients with legal issues. Ask your oncology social worker for assistance locating legal assistance in your area. Remember, the best interest of the child is what is at the heart of the matter.

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