By: Sherry Palmer | August 5, 2014 | Last modified August 14, 2021

grandparents raising grandchildren 20111027_085511_grand1c_200Grandparents do have rights. If the biological parent of their grandchild wants to designate them to care for the child as opposed to the State or CPS or DHS adopting them out or placing them into foster care, it is certain that they have the right to have the child as designated by the fit parent.

Does the grandparent have to prove their fitness?


Does the biological parent have to prove that their choice is better than CPS or DHS or a judge’s choice?


Does the biological parent have to prove that they can take possession of their child in order to designate the grandparent the caretaker of the child?


What then is the rule and the standard? Sherry and Ron B Palmer explain these arguments and here is a summary and a step-by-step list of what you should be looking for.

Many times a grandparent sits on the sidelines completely helpless. Their child wants them to raise their grandchild but the State steps in and decides that the grandparents will have to qualify like everyone else. And then the State sends the child to foster care or even gets the court to allow them to adopt them out!

This does not necessarily have to be the case. While grandparents may not have constitutional rights directly, there are other ways you can get your grandchild into your life when a biological parent is unable to care for the child and you would like to take the child into your care.

START HERE: First find out the following:

1.             Did the State have an adjudicative hearing with each of the biological parents?

2.             Did the State properly find the parent unfit?

a)            If the State is presuming the parent to be unfit, this is not the same thing as finding them unfit. Just because the State finds one parent unfit does not mean that both parents are unfit.

b)            If the State has a statute that allows them to presume a parent unfit because the other parent is found to be unfit, the Statute may be unconstitutional.

  1. Presuming unfitness or not making a determination at all and then using State authority to take possession and control over a child against the unadjudicated parent’s wishes, does not make the statute constitutional.

3.             Is the parent unable to take direct possession of the child themselves due to being incarcerated, being in the military, or even being too far away to exercise their rights grounds for the State to skip an adjudicative hearing?

a) Being unable to take physical possession of the child by the biological parent does not sweep the parent’s rights away to decide who they wish to designate to care for their child. It is presumed that fit parents and unadjudicated parents make the best interest decisions for their child. So even when a State or CPS or DHS tries to get the parent to prove their fitness, if they have not adjudicated that parent properly, the parent does not have to prove anything to them. It is the burden of the State to prove authority over the parent.

  1.              The state says that they determine best interest of the child.

a) If the State has not invoked their authority properly they cannot sweep the rights of the parent under the rug and do as they please with any child. Their parens patriae authority must be properly triggered. A finding of unfitness or clear and present danger would trigger this.

b) It is the State’s duty to prove that their authority is properly triggered.

c) The trial court and CPS or DHS will often try to intimidate you to follow what they or even make you think that whatever they say trumps anything you claim to be your rights. If you don’t make them prove it, then they can get away with this. It can be difficult to find someone to help you challenge CPS or DHS, so if you end up doing this on your own, there is new caselaw out there that you can use called “In RE Sanders” as well as our book, “NOT in The Child’s Best Interest.” We also have equal protection arguments on our page here:

So from now on, if the State did not find the biological parent unfit and that parent is trying to give you care, custody, or control of your grandchild, and you want to help that parent get out from under service plans and other excuses and delays that the State is creating to disadvantage you and that parent, then you will need the due process violation and equal protection arguments.

So if you are going to spend money helping the parent find legal representation then find one that understands these arguments. If they cannot understand them on their own, we can help them learn the argument so that they can use it.

Basically, the argument is that if the State did not find the parent unfit properly then they have violated due process and a fit parent has protected fundamental rights to the care, custody, and control of their child. That means even if the parent cannot take possession of the child, the parent can designate another adult to take possession of the child during their time, and they do not have to prove their choice of caretaker’s fitness. This is essentially no different than a married couple hiring a babysitter or sending their child to military school.

Additionally, the State does not get to invade your privacy and make you prove your fitness as a grandparent or a caretaker of the child. Child Protective Services don’t get to do this either.

This is a very basic summary of how your rights should work in the face of fit parents who want the grandparents to care for and raise their child.

If you would like more information or need one-on-one help, we can be contacted at

You can also find more information about these arguments with case citations in our book as well “NOT in The Child’s Best Interest” at

And you can watch a video where we talk about the biological parent’s rights here: CHALLENGING SERVICE ORDERS

Want the most powerful parental rights book, get it here:



Twitter: (@fixfamilycourts)


YouTube: Sherry Palmer with Fix Family Courts

Disclaimer: I am NOT an attorney or a lawyer. I do NOT practice law in any federal or State court system. Any information provided by me to you, regardless of how specific, is NOT intended to be legal advice under any state or federal law. I provide research, written strategies, and non-professional personal opinions on the Constitution and State laws as free exchange of politically important information that also serves an important public need and interest allowed under the First Amendment. You are highly encouraged to engage an attorney in your State to help you with the specifics of your legal issues and the law in your State. If you are a pro se litigant then you bear all and full responsibility for understanding the law in your state and acting under the law in your state. Nothing you receive from me is intended to be a “legal” document for purposes of any type of filing in any court. You are free to use my words for your personal non-commercial benefit, or as an aide in petitioning your government for redress of perceived wrongs, if properly cited where appropriate. YOU TAKE SOLE RESPONSIBILITY FOR ANY LEGAL ACTIONS YOU PURSUE AND THE RESULTS THAT YOU GET. I BEAR NO RESPONSIBILITY FOR YOUR RESULTS. MY OPINIONS ARE NOTHING MORE THAN MY PERSONAL NON-PROFESSIONAL OPINIONS OR BELIEFS. I MAKE NO CLAIMS OF LEGAL COMPETENCY IN THE LAW UNDER ANY GOVERNMENT STANDARD OF COMPETENCY IN THE LAW.

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