PARENTS ENJOY A VERY STRONG PRESUMPTION OF CUSTODY, EVEN WHEN THEY HAVE NOT ACTED LIKE PARENTS

In our society, it seems to be an ever increasing phenomenon that grandparents are left with the primary duty for caring for children.  This is caused by many factors.  Sometimes, it is caused by a teen birth where the mother is unmarried and incapable of providing the proper home.  Sometimes it is caused by a total lack of responsibility where parental care is delivered haphazardly.  Sometimes it is caused by drug use.  Grandparents and other care givers in these situations often try to seize custody from the parent.  To all who might view the circumstance, it might seem that the natural parent is not the best choice and should forfeit the actual legal custody.  However, there is a very strong presumption that the natural parent should retain custody, even when they are doing a poor job.  It appears from recent decisions of the Court of Appeals and Supreme Court that the care giver has to prove total desertion or abandonment before proceeding to analyze what is in the best interest of the child.  While all cases must be judged on their own merits, Grandparents and other care givers should be on notice that the standard for taking custody away from the natural parent is very high.

In the Matter of the Petition of William and Sarah Smith, NO. 2009-CA-01955-COA (Decided May 31, 2001)