Grandparents and grandchildren often establish strong emotional bonds. However, due to family problems, these relationships might be difficult to sustain. A death in the family, poor family relationships, or moving away can break these bonds. In such cases, grandparents file a petition to the family court for visiting or custody privileges. Grandparents have legal rights in their relationship with their grandchildren under California law.
The California Family Code on Grandparent Visitation
A family court in California may give reasonable visiting privileges to a minor child's grandparent under Family Code section 3100. If either parent of a minor child is deceased, the court may award you reasonable grandparent visiting privileges. The court may nonetheless give you visiting privileges even though neither parent of the child has died. A previous relationship between you and your grandchild must be established for the California family law court to award you reasonable grandparent visitation rights with your grandchild. When deciding whether or not to approve your grandparent visitation request, the court will always consider the best interests of the child.
Understanding Visitation Rights Under the California Law
For a grandparent to have reasonable visitation with their grandchildren, the court must:
- Determine whether there was a prior relationship between the grandmother and the grandchild that "engendered a bond." This indicates that there is a strong relationship between grandparent and grandchild that visitation is in the grandchild's best interests.
- Balance the child's best interests by having grandparent visits as well as the parents' rights to make decisions regarding their children.
While the children's parents are married, grandparents cannot file for visiting rights. However, there are certain exceptions:
- You must prove that the parents are living separately and not just vacationing or temporarily relocating
- An additional exception is when the parents of the grandchild are absent. Their location must be unknown for at least a month. When this occurs, the court may determine that the child requires the presence of a parent in his or her life. As a result, the court may decide that the grandchild's best interests are served by living with his or her grandparents
- A third exception emerges when you file an appeal for grandchild visitation and one of the grandchild's parents joins you in your petition. This happens when the parent approves of your visitation. The court will next decide whether this visitation is in the best interests of the child.
- Fourth, if the child does not reside with his or her parents, you as the grandparent have the right to request visitation with the child. However, the court must determine that such visitation is in the best interests of the child.
- The last exemption is when a grandchild is adopted by a stepparent. When this happens, one of the child's biological parents is no longer involved. The court will enable you, as the grandparent, to obtain visitation privileges with your grandchild when one of the parents is no longer in the picture.
In California, grandparents have visiting rights if one parent has lost legal custody of the child as a consequence of stepparent adoption, but they must petition for visitation rights.
A grandparent who also wants full custody of their grandchild can file a custody petition with the court. Because most courts prefer that children reside with their parents, a grandparent's entitlement to custody is usually restricted to the following:
- The child's parents are no longer alive.
- The parents of the child have been found unfit to keep custody.
- The child's parents approve of grandparent custody.
- The child has spent at least a year with the grandparent
Courts strive to figure out what custody arrangement is ideal for the kid in every child custody suit. Before filing a custody petition, the court may examine the child's level of interaction with a grandparent, the child's relation with other blood relatives, and the grandparent's age, health, and financial ability to sustain the child.
If parents are incapable of caring for their children, are jailed, or have died unexpectedly without leaving behind a custody plan, a grandparent may petition for custodial rights.
What are The Child's Best Interests in Custody Cases?
The best interests in child custody proceedings imply that all custody and visitation dialogues and choices are made with the ultimate objective of nurturing and supporting the child's happiness, safety, mental wellbeing, and emotional growth into early adulthood.
What Factors Influence a Child's Best Interests?
Although the best interests threshold can be difficult to define in some cases, several common elements are considered in most custody cases, such as the following:
- The desires of the child (if he or she is old enough to voice a genuine choice)
- The parents' emotional and physical wellbeing
- Any particular requirements a kid may have
- Considerations of a religious or cultural nature
- The requirement for a stable home environment to be maintained
- Other children whose custody is important to the custody arrangement for this child
- Support and engagement with relatives of either parent's extended family
- Relationships with other household members
- Adaptations to the school and neighborhood
- The child's age and gender
- If there is a history of domestic violence in the home
- Excessive discipline or psychological abuse by parents
- Evidence of parental substance addiction, alcoholism, or child/sex abuse.
Bear in mind that courts do not look at one element in itself, but rather adopt a more comprehensive approach. Their best interests judgments are typically made after taking into account a variety of factors relating to the child's situation as well as the parent's or caregiver's circumstances.
Can a Parent Deny Grandparent Visitation?
Parents have the authority to deny a grandparent visitation with their kid under Section 3103 of the California Family Code. Grandparents, on the other hand, may file a petition for visiting rights, which the court may approve if it feels the arrangement is in the best interests of the child.
Having visiting privileges, however, does not give a grandparent the authority to make parenting decisions. In grandparent visitation proceedings, parents' discretion is given significant weight, thus it might be difficult for a grandparent to effectively acquire visitation rights if the child's parent(s) do not believe it is in the child's best interests.
Petitioning for Visitation Rights
A grandparent can submit a petition in court to seek visitation rights with a grandchild under California law. It is tough to figure out how to file this request precisely. A divorce, a parentage case, a child support case, or a domestic violence restraining order may already have been filed between the child's parents, and a grandparent may be eligible to request visitation under one of those instances. Alternatively, there may be no ongoing case, and you, as the grandparent, will need to submit a request in court to start a new case.
Although no formal court forms exist for this purpose, many courts have created local forms and templates that you may use to request visitation with your grandchild. Request samples, templates, or local paperwork from your court's self-help center or family law facilitator. You can also engage a private lawyer to assist you with your petition or specific aspects of your case, known as limited-scope representation.
When filling out these papers, be sure to include a visitation schedule as well as the reason for your request. Grandparent visiting rights may be granted by a California court if the following conditions are met:
- The grandparent indicates that their relationship with the kid is beneficial to the child
- The capacity of parents to make decisions regarding their children is not affected by the visitations.
Your attorney or a family law facilitator office can examine this paperwork once they have been completed. Make four copies in total: one to file with the county clerk, one for your records, and two for the child's parents. To be acceptable, all of this paperwork must be delivered to the San Diego County Clerk and marked "FILED."
Following the filing of your petition, you will be given a court date to present your case to a family law judge. In some instances, the courts will set up a mediation date for you to meet with the child's parents and a mediator to address the situation.
You must serve a copy of your petition, as well as a Responsive Declaration to Request for Order (Form FL-320) and any other extra paperwork that the judge may request, to each parent before your court appearance. Both parents will be able to approve or disagree with the petition using this form. Your attorney can assist you in serving these forms, but they must be served by someone 18 years or older and never by you.
You will also need the person who served the documents to fill out a Proofs of Service form, which verifies that each parent was served with the petition. Your attorney should also examine this form to confirm that it was filled out accurately and that all required information was added.
Lastly, you will appear in court before a family law judge to decide whether you will be granted visitation. Your lawyer should also be present. You may be forced to attend a mediation with the child's parents to negotiate visiting arrangements.
Grandparent Rights Affirmed Through Mediation
Instead of filing a court petition, mediation may be a better option for you. Mediation would allow you to create a visitation arrangement with your grandchild's guardians without the involvement of the court, allowing you to have a candid and open dialogue. It is a good approach to come up with a legal answer without the stress and anxiety of a trial.
Visitation Rights Following Adoption
If a child is adopted by somebody else other than a stepparent or grandparent in California, all visiting rights with the prior family are instantly terminated. The adoption of a child damages not only the bond between the child and the parent but also all of the parent's relatives. Grandparent visitation may remain if the kid is adopted by a stepparent or another grandparent.
In addition, if a court has removed a child from the parent's physical custody and put the child in another setting, such as a children's home, the judge must consider whether ongoing grandparent visitation is in the best interests of the child. In certain situations, regardless of the parents' opinions or preferences, courts do not automatically presume that grandparent visits are damaging to the child's best interests.
Grandparents Seeking Child Custody
Grandparents must first demonstrate that their age, health, and financial circumstances allow them to effectively care for their grandkids. A court will then consider the child's best interests as well as the parents' rights to manage their children's nurturing. To get custody of a grandchild, a grandparent must present a compelling case.
This is particularly evident when both parents are living. A grandparent may need to prove that both parents are unsuitable to have custody of the child unless the parents willingly give up their custodial rights. Child abuse or neglect, as well as substance addiction or mental illness, can lead to a judgment of unfitness.
However, grandparents may still have to fight against attempts by other relatives to get custody of the child if this occurs. Non-parents competing claims for custody will be determined in the child's best interests.
When a child's parent dies, a grandparent may have a higher chance of gaining custody. However, unless it is not in the kid's best interests, courts prefer to place the child with the other parent if at all feasible. If this is not practicable or is not in the best interests of the child, grandparents or other close relatives may be able to acquire custody.
Because courts favor stability during a child's growth, a grandparent's case will be especially strong if the custodial parent and grandchild were already living with them. It is also essential to establish that the kid wishes to live with the grandparent or that the child's grandparent was chosen in a valid will by the dead custodial parent.
What is the Distinction Between Adoption and Guardianship In California?
Although it is achievable, grandparents' custody rights are considerably more difficult to obtain than visiting rights. Grandparents might seek custody rights through adoption or guardianship. It is crucial to keep in mind that these procedures are complicated, and the particulars will differ depending on the facts of both cases.
Only a skilled adoption attorney can provide you personalized advice based on your unique circumstances; nevertheless, we have put up a summary of the distinctions between guardianship and adoption to help you grasp the fundamentals.
The following are the distinctions between the two:
Guardianship
This is short term caregiving arrangement for a child in which someone is in charge of the child's care and comfort and has the legal capacity to assent on the child's behalf. Legal guardianships grant guardians responsibility of a child till he or she reaches the age of 18, but the child's parents retain parental rights.
Courts, on the other hand, will only overturn guardianship if it proves that the guardian is not able to take care of the child or guarantee their safety. Unless an exceptional provision is included in their will, a guardian cannot pass on their inheritance to the child in their guardianship.
A guardian might be a grandparent, sibling, stepparent, or someone who is acquainted with the child. When a guardian is chosen, they are given all of the legal rights and duties that their parents would have. A guardian can usually only be chosen for a child under 18 years.
Adoption
Adoption is the legal process of creating a legal parent-child connection when the adopting parent is not the child's biological or birth parent. Adoption dissolves the prior legal parent-child connection and establishes a new legal parent-child relationship between the adoptive parent and the child.
The adoptive parent(s) have all of the legal rights, obligations, and duties of any other biological parent after the adoption procedure is completed. That new parent-child connection is legally binding and is equivalent to that of a biological family.
San Diego courts must first assess the parent-child connection before considering a custody request. If the courts rule that a parent is incapable of raising their child, the child may be placed with a family member, such as a grandparent, rather than the parents. The courts will evaluate your bond with your grandchild at this stage to see if it is in the best interests of the child.
Find a San Diego Family Law Lawyer
San Diego courts must first assess the parent-child connection before considering a custody request. If the courts judge that a parent is unfit to raise their child, your grandchild may be placed with you, rather than the parents. The courts will evaluate your bond with your grandchild at this stage to see if it is in the best interests of the child.
This is usually an intricate process. However, we will ensure that your case progresses promptly. We may file for urgent visitation and help you reclaim your relationship with your grandchildren. Many grandparents find navigating the legal system difficult, but the San Diego Family Law Attorney is here to help you. To schedule a consultation, please contact us now at 619-610-7425.
