FindLaw KnowledgeBasePublished: 2013-02-15
Like in most states, grandparents in California do not automatically have custody or visitation rights over their grandchildren. In the event a grandparent wishes to be awarded either custody or visitation, they must receive an order from the court. Of course, there are several different factors the court will consider in determining whether such arrangements will be allowed.
When can a grandparent request visitation?
When there is not a change in the parental relationship, say the parents of the child are currently married or were never married, courts generally grant reasonable visitation rights to a grandparent if there is already a relationship between the child and the grandparent requesting visitation. Most surprisingly, if the child has an interest in having visitation with this or her grandparent, this desire can actually outweigh the rights of the parent trying to prevent such visits. However, when both parents contest the visitation, most courts presume that visits would not be in the best interest of the child.
In order to secure such an order with the court, the grandparent must petition his her local Family Court. In petitioning the court, the grandparent must prove the presence of at least one of four court-mandated requirements. Thus, the grandparent must show that:
- The parents are living separately for an indeterminate amount of time,
- One of the parents has been absent for over a month,
- One of the parents joins the grandparents petition, or
- The child is not living with either parent.
Often times, it is easier for the grandparent to petition for visitation when the child’s parents are currently involved in their own legal disputes, such as a divorce or custody battle, is slightly different. In such situations, the grandparent can make their petition to the court overseeing the parent’s ongoing legal battle.
However, the process for receiving visitation or custody is quite different when the request for visitation is due to an unfortunate event having occurred in the child’s life. Such events include the death of a parent, or even the removal of a child from the family home by the Department of Family and Children’s Services due to alleged abuse.
When the parent of a child dies, many different individuals may have an interest in the future custody of the child. For instance, the child’s older siblings, aunts, uncles, or even family friends may try and gain custody of the child, arguing they will be able to provide the most stable environment. Given the courts desire to maintain a family structure, California judges are often inclined to place the child in the custody of a grandparent when neither parent is alive or able. Of course, the courts will do such only when it is found that the grandparent will be able to provide for the best interests of the child.
Similarly, when a child is removed from the home by the Department of Family and Children’s Services, the court will have to determine where to place the child in order to ensure the child’s best interests are met. Frequently in these situations, a grandparent will call the court and request that the child be place in the grandparent’s home. Again, in trying to maintain the family unity, courts typically comply with the grandparent’s request.
Contact an expert
If you or your family member is in the process of child custody negotiations, or are considering making changes that will result in such, contact an experienced family law attorney who can discuss available options with you. Attorneys experienced in child custody can assist their clients in modifying or enforcing visitation orders, ensuring child support payments, and even helping fight for the safety of the involved child.