Journalist: Sydni Callaway
Sen. Massengale (SE) is bringing SE-005, known as the “Grandparent Emergency Custody and Protection” Act of 2026 to the Senate chamber this session. This bill relates to emergency custody and child protection, allowing a grandparent to file a petition under certain circumstances.
The burden of proof for this determination is stated in Section 3, Subsection B which includes “fit-parent presumption”, “burden”, “threshold finding” and “best interests second”. The threshold finding that is required must be proven to the court that “the parent is unfit and/or the child will suffer a substantial risk of serious harm if placed in or returned to the parent, and the harm cannot be prevented by a less restrictive alternative” as written in the legislation. In regard to the exigent circumstances, it discloses placing the child with a grandparent only if “specific facts show immediate danger of serious harm”, which will then follow into temporary custody after the emergency hearing.
While this legislation does show preference to grandparents in custody relations, it does state that there shall be no automatic preference. However, if this bill passes, there will be benefits to why they should get preference in these custody cases, which can be outlined by constitutional precedent as noted by Michelle Ognibene in “Chicago Unbound.”
In this analysis, Ognibene outlines how grandparents can be obligated to the right to parental autonomy. The study writes “the interests of grandparents in their relationships with their grandchildren bear many similarities to those of parents” referencing the Due Process Clause. While it is not an unenumerated right, the cases for grandparents receiving custody is not far from Supreme Court precedent. The Supreme Court has similarly ruled to expand these protections similarly in Moore v. City of East England.
Keeping this in mind, favoring preference for grandparents in custody relations is beneficial and helps the minor maintain a relationship with immediate family. This bill still waits to be heard in the Senate.