SAN BERNARDINO GRANDPARENTS' RIGHTS ATTORNEYS

• A parent has passed away^[i]
• The grandchild’s parents are married, but are separated, living separately, and apart on a permanent or indefinite basis^[ii]
• The parents are not married to one another, including after a divorce^[iii]
• A divorce proceeding, or other family law proceeding, is pending in which custody of the grandchild is already at issue^[iv]
• At least one of the grandchild’s parents’ has not been able to be located for a least one month
• At least one of the grandchild’s parents applies with the grandparents for their visitation
• The grandchild is not living with either of their parents
• A stepparent has adopted the grandchild^[v]
• At least one parent is in jail / prison or has been institutionalized

It is important to note, however, that if visitation is granted based on one of the above circumstances, and that circumstance no longer exists, the parents may petition the court to terminate the grandparents’ visitation. For example, if a parent is incarcerated, and is later released from prison and reconnects with the child, the parents may ask the court to terminated the grandparents’ visitation.

Understanding Special Circumstances for Grandparents' Visitation

A parent has passed away.

Grandparents may be awarded visitation rights if either of the child’s parents has passed away and the court finds that visitation is in the best interest of the child. However, it is important to note that the court will not grant visitation if someone other than a stepparent or grandparent adopts the child.

 In some instances, if a parent has passed away and the grandparents feel the surviving parent is unfit, this may entitle the grandparent to seek visitation.

However, this presents numerous hurdles and issues that must be evaluated by the court in order to prevent intrusion of that parent’s rights to make decisions about his or her child.^[vii] Grandparents seeking visitation over a parent’s objections have a difficult burden of proving an allegation or finding that a parent is unfit and that a grandparent visitation schedule is genuinely in the best interests of the child.

Unmarried Parents or Parents Living Separately

• California allows for grandparent visitation when parents are unmarried or married but living separately.
• The court will examine the relationship between the child and the grandparents and then balance the grandparents’ interest in obtaining visitation against the fundamental rights of the child’s parents.^[viii]
• Courts are reluctant to interfere with parental rights to decide what is best for children when there is a lack of evidence demonstrating parents' unfitness.
• Furthermore, courts will not interfere to grant custody where doing so would conflict with custody / visitation of a birth parent not a party to proceedings.

Visitation During Divorce or Family Law Proceedings

A court may be inclined to grant a visitation schedule to grandparents while a divorce or other family law proceeding involving child custody is still pending. Again, the issue turns on the best interests of the child, which are critical for the court to consider when determining visitation schedules.^[ix]

Moreover, the court will not award visitation to grandparents if that schedule would create a conflict with the custody or visitation rights of a birth parent who is not a party to the family law proceedings.^[x] There is a rebuttable presumption under California law that grandparent visitation is not in the best interests of the child where parents agree that grandparent visitation should be denied.^[xi]

Contact our San Bernardino office for personalized advice on grandparent visitation rights.

Legal Steps for Grandparents Seeking Visitation in San Bernardino

California law allows grandparents seeking visitation to petition the court.

• The grandparents must serve copies of their petitions to all parents and others with physical custody.
• The first step is mediation: The court will automatically send the grandparents and child’s parents to mediation in order to settle the visitation issue without a court order.
• If mediation does not resolve the conflict, the mediator will alert the court, and a hearing will be scheduled before a judge.

Remember that there is a presumption under California law that grandparents should not be awarded visitation when the parents agree to visitation. Every judge deciding a grandparent’s visitation case will approach it with this presumption, which means that the burden of proof is on the grandparent

Key Factors in Grandparent Visitation Cases

The Court will consider multiple factors before reaching its decision of whether or not to grant a grandparent visitation, including, but not limited to, the following:

• The health, security, and wellness of the child in his or her current situation
• Whether or not the person seeking visitation or custody has any history of domestic violence
• Any history of drug or alcohol abuse by any party to the proceedings
• The history of contact, time spent, and the bonds between the grandparent and the child

In cases concerning grandparent visitation rights, the judge must decide whether there is an established grandparent / grandchild relationship, which would suggest that it is in the best interests of the child to continue the relationship. Courts also must consider the rights of the parents to prevent grandparents from being awarded visitation despite the benefits of the relationship. In cases where grandchildren are 14 years old or older, their preferences in regard to grandparent visitation will also be considered.

If one or both of the child’s parents has passed away, the court may approve visitation with the deceased parent’s family members if this is in the best interests of the child. When it comes to other family members—such as cousins, aunts, and uncles—judges will look at preexisting relationships and the amount of prior contact with the child when making decisions about visitation. Grandparents, however, only need to provide evidence that visitation would be in the child’s best interests.

If the court does grant visitation to a grandparent or grandparents, the parents may also be ordered to provide financial child support for certain expenses. For instance, these expenses may include transportation, medical, daycare, or other necessity costs. For example, it is not uncommon for a grandparent to live beyond normal driving distance, requiring the child to take an airplane or train ride to visit the grandparents. In that case, the court may determine that the parent must pay for the air or train fares. Additionally, if the child has any ongoing medical needs, such as regular insulin injections or asthma medications, the court may require the parent to cover these necessary costs.

Can Grandparents Obtain Custody of Grandchildren?

In California, grandparents may be awarded custody in certain circumstances. If the parents are unable to provide fit custody, the courts will to place the child in a stable, safe environment. In some cases, children are already living with grandparents. If the grandparents can give the child a safe home, and have the capacity to offer needed guidance, love, provision, and care, the courts may grand them custody.