A new look at grandparents’ rights to custody

The death of a parent is a devastating event in any child’s life. Children of divorced parents are even more affected if the death is that of the custodial parent. A new question arises: who will get custody of the children after the death of the custodial parent? The answer is not always straightforward. Even though non- custodial parents seem natural successors in custody, they may not automatically be awarded custody. Often they are either unable or unwilling to become the custodial parent due to a wide range of issues from employment to mental or physical disabilities.

Therefore, grandparents are increasingly seen petitioning for custody. In the Matter of the Marriage of Eileen Winczewski the grandparents were awarded custody of their two grandchildren after their father’s death. The court found that the grandparents demonstrated by a preponderance of the evidence that the mother could not or would not be able to provide adequate care for the child, and that placing the children in her care would expose them to undue risk of physical or psychological harm.

It has long been established that parents have a protected right under the Fourteenth Amendment of the United States Constitution to care, custody, and control of their children. The Winczewski case established that this right can be overcome by a non parent who has demonstrated that there are compelling reasons why a parent should not receive custody.