Child Support When Grandparents Have Custody (Legal Guide)

The term “child support” refers to monthly, court ordered payments generally associated with divorce and legal separation. These payments are intended to aid in the financial responsibilities of raising a child. Child support is intended to provide for the following general categories of a child’s needs:

• Food, shelter, and clothing;
• Medical care, and other health related expenses; and
• Educational expenses, such as tuition when necessary.

Generally speaking, grandparents are not legally required to make any sort of child support payment for their grandchildren. However, there are some specific circumstances in which a grandparent would need to pay child support. This would usually be due to the fact that parents have a legal duty to provide for their child; this includes biological and adoptive parents. When they are unable or unwilling to do so, some states have determined that the duty is then passed on to the grandparents.

Grandparents standing “in loco parentis” to their grandchildren are considered to be responsible for the care of the child, including financially. Simply put, this term can be defined as standing in place of the parents and raising the children as their own. If the grandparents divorce, child support payments can be ordered as part of their divorce decree.

This would be authorized under a provision of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, which is also known as the Welfare Reform Act. Under the Act, states are encouraged to have processes in place for child support orders to be enforced against a grandparent.

This remains true even if the child is not being raised by their grandparents. Under this law, which is not actually required, grandparents could be held liable for child support payments if the custodial parent is a minor, and receives government support payments.

Generally speaking, grandparents could be liable for child support or care for their grandchild if:

• The child’s parents are minors, meaning under the age of 18;
• The parents can prove that they are unable to support their child;
• The grandparents have been granted custody of the child, and are in fact parenting the child; or
• One parent cannot be located, but their parents (meaning, the child’s grandparents) can be found.

As previously mentioned, grandparents may be responsible for child support payments when the child’s parents are unable to support them. Each state has its own rules regarding how to determine whether a parent is unable to support their children, and what constitutes “unable.”

However, it can be difficult for parents to prove that they are actually unable to care for their child as it is not enough to prove that they have a low income. The parent will need to prove that they are so destitute that they lack the resources to provide for a child’s basic needs. These needs are the same needs that are meant to be covered by child support payments, such as adequate food, shelter, and clothes.

Which States Require Grandparents to Pay For the Support Of Their Grandchild?

States which may require grandparents to make child support payments include:

• Arizona;
• Idaho;
• Illinois;
• Maryland;
• Missouri;
• New Hampshire;
• North Carolina;
• Ohio;
• Rhode Island;
• South Carolina;
• South Dakota;
• Wisconsin; and
• Wyoming.

Some states also extend responsibility for child support to the parents of the child’s custodial parent, as well as the parents of the child’s noncustodial parent. Maryland and North Carolina are two such states.

Are The Grandparents Granted Custody Of Their Grandchild By the Court?

Whether custody orders will be made can depend largely on the circumstances of each specific case. However, it is possible that a court would award custody of the child to their grandparents, as opposed to simply holding the grandparents responsible for child support payments.

Courts tend to prefer that children live with their parents, as this is usually what is in the child’s best interest. As such, the court will make every attempt possible to keep the nuclear family together. However, it is determined that a grandparent would better suit the needs of the child, they may be awarded custody rights when certain conditions are met.

Grandparents may be awarded custody of their grandchild if the child’s parents:

• Are deceased;
• Have been deemed by the court as unfit to have custody;
• Give their consent to grandparent custody; or
• If the child has lived exclusively with the grandparent for a minimum of one year.

Some examples of the many different factors that the court may consider include:

The amount of contact between the child and grandparent prior to the custody petition being filed;
The child’s relationship with other blood relatives, such as adult siblings, aunts and uncles, etc; and
The grandparent’s age, health, and overall ability to care for and support their grandchild.

In sum, it is unlikely that a grandparent would be ordered to make child support payments without also being granted custody rights to their grandchild or grandchildren.

Are Grandparents Granted Visitation Rights?

Generally speaking, no, grandparents are not granted visitation rights to their grandchild if the child’s parents are still their legal guardians. Grandparents do not have a legal, inherent right to visitation. In circumstances involving issues regarding financial dependency and child support, grandparents may be granted specific custody and visitation rights.

If a grandparent wishes to be granted visitation rights, one or more of the following examples of criteria must be met:

• The child’s parents have been legally separated for a minimum of six months, or are divorced;
• It is in the child’s best interests for their grandparent to be awarded partial custody or visitation rights;
• The child has lived with their grandparent for at least one year with the parent’s consent; and/or
• One of the birth parents has died.

Grandparents do have the right to request visitation rights from a family court. When this request is made, courts will consider the following factors:

• How far the parents live from the grandparents;
• The grandparents’ lifestyle;
• Whether the grandparents are involved in drug or alcohol abuse;
• The child’s desire to visit with their grandparents;
• How attached the child is to their parents, as well as their grandparents; and
• Whether the parents have refused to allow the grandparent to visit with their grandchild.

If the court grants the grandparents’ request, a fixed visitation schedule is created to outline whose home the child will reside in, and on what days of the week. Generally speaking, judges prefer that the parents and grandparents work out a visitation schedule by themselves; if they cannot, a court may impose a schedule that considers the parents, grandparents, and children.

Because there is no inherent legal right to grandparent visitation, different states maintain different requirements. Some states will permit grandparent visitation upon showing that visitation is in the child’s best interests, while less lenient states will make it more difficult for grandparents to obtain visitation rights. Still other states may only permit grandparents to visit their grandchildren under especially limited circumstances.

Do I Need an Attorney For Issues Associated With Grandparents and Child Support?

If you have any questions regarding a grandparent’s rights or obligation to make child support payments, you should consult with a local child support lawyer. As state laws differ widely, it is important to work with an experienced and local child support attorney so they can better help you understand your state’s specific laws on the matter. An attorney will also be able to represent you in court, as needed.