California law does not automatically grant grandparents custody and visitation rights. It does automatically grant custody rights to the child’s biological mother in question. With the right support and evidence, grandparents may file a petition with the court requesting reasonable visitation. The circumstances surrounding the child’s custody situation will play a significant role in determining the kind of custody a court will award the grandparents. There is a legal difference between filing for a grandparent’s custody and visitation rights. Distinct factors must be present within the family structure to file for these rights. It is essential to understand the difference between the two rights if one is to file for them as a grandparent.
What are Grandparent’s Custody and Visitation Rights in California?
One of the most asked questions by grandparents regarding the custody and visitation of their grandchildren is whether they have a legal right to claim them. In California, the law does not afford grandparents any legally established or recognized claims to the custody and visitation of their grandchildren. However, there are instances where it may become necessary for them to petition for these rights to the courts. Unfortunately, there are instances where a child’s parents are unfit to have physical custody of the child due to threats to their safety and well-being. In these instances, a judge may need to award grandparents custody rights.
A judge may solely award grandparent’s custody and visitation rights of their grandchild if:
- Their parent(s) mental illness makes them an unfit caretaker
- Alcohol and drug abuse threaten their safety in their home
- The court declares that both parents are unfit guardians
- The court finds one parent an unfit guardian, and the other cannot care for their child.
- Both child’s parents have willingly consented to the grandparent(s) having custody of their child.
Though these circumstances warrant grandparents in California the ability to petition for custody of their grandchild, they do not guarantee that a court will award it. If the courts must evaluate a child’s custody, other family members or capable individuals have the right to petition for custody of the child alongside the grandparents. Because of this, the court will evaluate the custody situation by evaluating numerous factors. Ultimately, the court will award custody to the individual they find the most suitable caretaker. There is no guarantee that the individual chosen by the court will be the child(ren)’s grandparents.
How To File for Grandparent’s Custody and Visitation Rights:
Reasonable Visitation and Child Custody
As a grandparent of a child who is in a situation that requires intervention to protect their safety, one needs to understand the difference between filing for reasonable visitation vs. filing for custody of their grandchild. Failing to understand the difference between the two properly may cause the grandchild(ren) in question to experience adverse consequences from filing the wrong court petition.
Filing For Reasonable Visitation
Under the stipulations of California Family Law, Grandparents may file for reasonable visitation when their grandchild(ren)’s parents are filing for divorce. Petitions for reasonable visitation use the relationship a grandparent has already established with the child as a basis to ensure the divorce does not alienate the child. The lack of visitation the alienation would cause places a strain on the relationship and the child’s well-being. In handling a grandparent’s visitation for reasonable visitation, a court must find that:
- A pre-existing bond between grandparent(s) and grandchild comes under stress due to a sudden lack of or complete stop in visitation. Further, they must find that this lack of visitation and strained relationship threatens the child’s well-being, mentally or physically.
- The court must also establish their ruling while maintaining a balance between the petitioning grandparent(s)’ right to reasonable visitation and the child’s parents’ ability to make decisions regarding the care and well-being of their child.
Generally, grandparents cannot file a petition for reasonable visitation when the grandchild’s parents are married. Although, the following circumstances act as exceptions to this rule. Grandparents may file for reasonable visitation while the grandchild’s parents are still married if:
- The physical location of one or both parents has been unknown for a minimum period of one month.
- The grandchild’s parents live at separate residences and will be for the unforeseeable future.
- A stepparent has legally adopted the grandchild.
- The grandparent is filing their petition for reasonable custody with the support of one parent.
- The grandchild no longer lives with either of their biological parents/legal guardians.
Keep in mind that any reasonable visitation arrangement made by the court is subject to change if one’s familial circumstances do. Reasonable Visitation rulings and schedules are not permanent. A child’s parents may ask the courts to alter or end the grandparent’s visitation schedule alongside changing family circumstances.
Filing For Custody of a Grandchild
Though there is a clear legal difference between filing for custody of a grandchild versus filing a petition for reasonable visitation of a grandchild, they both share a common goal in the eyes of the court: to maintain and protect the safety and well-being of the child(ren) in question. Legally when a grandparent, or other individual, files for legal custody of a child, it is known as filing for guardianship. California law defines guardianship as the action that occurs when a biological relative who is not the child’s present legal guardian or biological parent is granted the following by the court:
- Custody of the child or children
- The legal rights and responsibilities associated with managing the child(ren)’s property or estate
This form of guardianship is known as probate guardianship. Probate guardianship is not the same as adoption. In adoption, the child(ren)’s biological parents have their parental rights terminated by the court. In probate guardianship cases, the parents can retain their parental rights. There are two kinds of probate guardianship available to grandparents in California: Guardianship of the Person and Guardianship of the Estate. Depending on the circumstances, a grandparent may file for one or both forms of guardianship.
Guardianship of the Person
When a grandparent petitions the court to obtain guardianship of the person, the grandparent asks the court to give them all the same legal rights and responsibilities of caring for a child that their natural parent has. Guardianship of the Person may be filed for by a grandparent or other suitable individual when one or more parents:
- The grandparent has received a physical or mental illness diagnosis that hinders their ability to parent appropriately.
- Have been deployed by the military
- Be abusing drugs and alcohol
- Have a proven history of physical abuse
- Have been sentenced to serve time in prison
- Have been admitted to any form of a rehabilitation program
If awarded with guardianship of the person, the grandparent(s) will have sole physical and legal custody of their grandchild. The ability to petition the court for guardianship of the person is not a right that is exclusive to grandparents. Suppose a child’s current living situation or caretakers become unfit to provide proper care. In that case, any individual found to be a suitable caretaker of the child may receive the grant of guardianship from the court.
Guardianship of the Estate
Unlike Guardianship of the Person, the responsibilities assigned to a grandparent whom the court gives guardianship of their grandchild’s estate focus on the grandchild’s financial assets. Typically, Guardianship of the Estate is granted to an individual when a minor child inherits an estate such as money or other assets. In cases where the child inherits an asset upon the death of one parent, the courts generally grant guardianship of the estate to the surviving parent. However, if the child inherits an estate and both parents are deceased or otherwise unfit to receive guardianship, the court may award guardianship to a surviving grandparent. When the court awards a grandparent guardianship, they are responsible for managing their grandchild’s money and property intentionally and carefully.
Regardless of the type of guardianship that a grandparent may be petitioning for, California does not automatically grant legal custody or visitation rights to grandparents. Because of this, grandparents should be aware of how their domestic situations may influence their case when choosing to seek legal action.
Contact Pride Legal
If you or a loved one has any concerns relating to child custody or visitation, we invite you to contact us at Pride Legal for legal counseling or any further questions. To protect your rights, hire someone who understands them.