Every state has different regulations, requirements and statutes regarding grandparent visitation and guardianship rights with their grandchild or children. Below are brief descriptions, roughly touching on the primary factors a court considers when determining these rights.
In California a grandparent may ask the court for reasonable visitation with a grandchild. In order to do this there are several requirements which must be met. First, there must be a pre-existing relationship between the grandparent and the grandchild(ren). This means that the grandparent must have been involved one way or another in the child’s life on a regular basis usually within 6 months of bringing the complaint for visitation. Involvement in the child’s life could be such things as the child living in your home for several months or longer, taking the child to school every day for the last school year, or watching the child while the parent(s) work. The court will determine if it is in the child’s best interest in having visitation vs. the rights of the parents to make decisions about their child.
Grandparents cannot file for visitation while the grandchild’s parents are married, however, there are exceptions to this rule; If the parents although still married are living separately; A parent’s whereabouts are unknown; One of the parents joins in favor of the petition for grandparent visitation; The child does not live with either of his parents; or the child has been adopted by a stepparent.
If you have grandchildren whose parents are unable to care for them due to illness, or some other condition and you wish to get legal and physical custody of them you may file a petition for guardianship of a minor. If either of the parents object however, you will have to prove to the court by clear and convincing evidence that granting custody to the parent would be detrimental to the child and that granting custody to the non parent (grandparent) is necessary to serve the best interests of the child. However, if you are a grandparent seeking custody of your grand kids you must realize that the law in California creates a presumption in favor of parents who object to non-parents seeking custody. Practically speaking in order to get a custody order a grandparent has to be a “de facto” parent to the grandchild, this means the longer a child has lived with their grandparents the better chance they will have of getting custody and or guardianship of the child(ren). Finally, it is always helpful in these types of situations to have the approval of at least one of the parents otherwise it can be an uphill battle.
By Martin Mendoza, ESQ
You can reach us directly at 800 787 4981
This information is not legal advice or legal counsel and does not apply to all situations or circumstances. Contact a local family attorney if you are seeking legal advice and counsel.