California child custody information provided by experienced divorce and family law lawyers serving the Temecula, Murrieta, Hemet and Riverside areas of Riverside County, California.
Grandparent rights is one of the most confusing and emotional areas in family law. Parents rightly feel they should be able to raise their children as they deem appropriate. Grandparents feel that when they have invested significant time and love into their grandchildren, the custody should not be ripped away. These two central and opposing philosophies form the basis for the California law on grandparents' rights.
There are three different ways that a grandparent can acquire legal rights of his or her grandchild. The first, and most common, is through a guardianship action. A guardianship replaces the parental role. When the family court establishes a guardian in a child's life, it takes away all custody rights from the child's mother and father and gives those same powers to a third person, called a guardian. A guardianship gives all custody rights and responsibilities to the guardian, and the parent is given the custody rights of a stranger.
A guardianship action is an extreme measure. California courts will only establish a guardianship as a last resort. The court must find that awarding custody of a child to either parent is detrimental to the child. Normally, the guardian must prove satisfactory evidence that the child is abused or neglected in some way. In addition, if the child is over the age of 12 years, that child must approve the guardianship. The older the child is, the more voice that child has in who will care for him or her. Although the courts must always find that placing the child in the custody of a parents will be detrimental to the child, sometimes this can be established simply by showing to grant custody to a parent will cause a traumatic disruption in the child's life.
For instance, a few years back, we had a case where the child was 14 years old. She had lived here entire life with her step father. The mother was in and out of the child's life and the biological father had no relationship with the child. When the child entered high school, the mother decided the step father was no longer a positive influence on the child. Mother removed the child from the step-father's custody, who provided the only home the child ever knew. Mother assumed sole custody and cut off all contact between the child and her step-father. The child nominated the step-father for a guardianship. The step-father received guardianship based upon the child's strong desire to live with him. The court found that is was psychologically detrimental for the child to remain in the custody of her mother.
In addition to obtaining custodial rights through a guardianship, a grandparent can obtain visitation rights through a family law court action. While a guardianship is litigated in probate court, a grandparent visitation action is litigated in family, sometimes called divorce court. However, in family court, a grandparent can only obtain visitation rights, and cannot obtain full-time custody of his or her grandchild.
There are two different ways that a grandparent can establish a visitation schedule in a family law action. The first is by filing his or her own independent lawsuit, and the second is by obtaining visitation rights while a divorce or paternity action is being litigated between the parents. Although the legal procedures are different in establish grandparents' rights in each action, the basic requirements are the same.
First, the grandparents must show that they previously played a significant role in the grandchild's life. This can be easily shown where the grandchild lived in the home of the grandparents for a significant period of time. It can also be done where the grandparents provided significant emotional support to the grandchild by taking on some of the parenting duties for the child. Essentially, the grandparents must show that an emotional bond between the child and the grandparents has been established.
Secondly, the grandparents must show that a continued relationship between the child and the grandparents is in the best interests of the child. However, if the parents have joint legal custody of the child and object to the grandparent visitation, it is presumed that visitation is not in the best interests of the child. Where one parent has sole legal custody of the child and that parent objects to the grandparent visitation, it is again presumed that visitation is not in the best interests of the child.
Thirdly, there has to be some reason that the grandparents cannot visit with the child while the child is in the physical custody of the grandparents' natural child. For instance, one parent is deceased, one parent is incarcerated, or one parent has no contact with the child, or one parent is otherwise prevented from having a relationship with the child.
Finally, if grandparent visitation is established, it cannot be a basis to prevent the parents from relocating his or her residence in a move away case.
This is a very simplified version of the rights of a grandparent when it comes to custody and visitation of a grandchild. The bottom line is that if a grandparent wishes to obtain custody or visitation rights of his or her grandchild, it may be possible under California law. However, the grandparent should first consult with an experienced family law or divorce attorney before proceeding. The custody laws in this area is complicated and confusing, and is filled with many pitfalls.
If you live in the Temecula, Murrieta, Hemet or Riverside areas of Riverside County, California and have any questions about obtaining either custody rights or visitation rights through a grandparent rights case, please feel free to contact our office to set up an appointment with a family law lawyer at: (951) 816-9543.
Otherwise, for more information, please visit our websites at: Temecula Lawyer, Family Law in Temecula, and Riverside County Family Lawyer