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During divorce custody disputes can occasionally become multi-generational with grandparents seeking visitation with, or even custody rights over, their grandchildren. In general, the Court’s preference to award custody to one or both parents is set forth in California Family Code § 3040(a)(1). However, the Court may award custody of a child or children to a non-parent in the event that the Court deems it inappropriate to award custody to either parent. This non-parent can be a grandparent, other relative, or even just a family friend. Family Code §§ 3101, 3103 and 3104 set forth the requirements for grandparent visitation in California.
In California, there are several requirements that must be met in order for a grandparent to ask for reasonable visitation with a grandchild. First, there must be a “pre-existing relationship” between the grandparent and the grandchildren. “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.” A child that lives with the grandparent for a portion of time would also fit under this category. In granting or denying grandparent visitation the Court must balance the interest of the child or children in having visitation with the grandparent against the right of the parents to exercise their parental authority.
Grandparents generally cannot file for visitation while the grandchild’s parents are married. However, there are exceptions to this rule: married parents living separately, a parent’s unknown whereabouts, one of the parents joins in favor of the petition for grandparent visitation, the child does not live with either of the parents, or the child has been adopted by a stepparent (Wikipedia).
In certain cases, when the parents are unable to care for a child, a grandparent, other relative or established caregiver for the child may file a guardianship action which would grant custodial rights over the child. If either of the parents objects, the grandparent must prove that the child in the parent’s custody would be harmful to the child. Arguments must be very clear and decisive for the grandparents as California law generally favors parental custody. The longer that the child has lived with the grandparent the better the chances are. 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 (Courts.ca.gov).
There are strong presumptions in favor of parental rights; however, grandparents can receive visitation or custodial rights in certain circumstances. To determine if your case meets these requirements, please contact The Law Office of Matthew J. Rudy for a free one hour Consultation.