40+ Years’ Collective Experience Practicing Family Law
At the Law Office of Michael R. Young, we provide effective advocacy for grandparents seeking visitation or custody. The relationship between a grandchild and a grandparent is special. It can’t be compared to nor sufficiently replaced with another familial bond. Many grandparents play a significant role and are very involved in the lives and upbringings of their grandchildren. In some cases, grandparents tend to play a direct parental role in raising their grandchildren.
Unfortunately, sometimes grandparents find themselves intentionally excluded from the lives of their grandchildren. Recent observance of grandparents’ rights has engendered new laws regarding non-parental visitation rights. Often, after a divorce or separation, grandparents feel that their bonds, involvement, and visitation or custody of their grandchildren are in jeopardy. The issue of grandparent visitation and / or custody is complicated. We outline the complexities and options available to grandparents seeking to remain involved in their grandchildren’s lives and upbringing.
Speak with a San Bernardino family lawyer from our office if you have questions.
When Can I Ask for Visitation with My Grandchildren?
There is no requirement for grandparents to obtain a court order to obtain visitation of their grandkids, provided that there is no objection from the parents. However, problems tend to arise during a separation or divorce, where the parents stop letting grandparents to visit their grandchildren or participate in their lives. When the parents revoke permission for grandparents to visit their grandchildren, then there may be legal options available that allow the grandparents to go to the court. California allows grandparents to ask the court for visitation or custody of grandchildren when certain circumstances are present.
If the parents are still married, the courts will not accept a grandparent visitation petition, unless:
- 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.
The Special Circumstances for Grandparents' Visitation Rights:
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.
Additionally, any visitation rights granted prior to adoption will be terminated by a subsequent adoption by a non-stepparent or non-grandparent.[vi] 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.
Parents are unmarried, or married but 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.
Divorce or other 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]
How Does a Grandparent Seek 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
Factors Considered 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.
Are Visitation Rights Affected by an Adoption of the Child?
California law does not allow for a disruption of parental rights granted to adoptive parents of a child when those adoptive parents are neither a stepparent nor other grandparent. When a child is adopted, any preexisting visitation rights of family members are automatically terminated—unless the child is adopted by a stepparent or other grandparent. Adoption severs the legal relationship between the child and his or her parents. Additionally, it severs the relationship between that child’s biological relatives as well, including grandparents. However, if an adoption is made by a stepparent or another grandparent, the relationships and visitation rights of grandparent will continue to exist.
Is It Possible for Grandparents to be Awarded Custody of the Child?
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.
Petitioning the Court for Grandparent Visitation Rights
The process for petitioning the court to order grandparent visitation rights is difficult and complex. You should consult an experienced San Bernardino family law attorney from our team at the Law Office of Michael R. Young before initiating the process. We can walk you through this process step by step and work to fight for your grandparent rights. There may already be open, pending family law proceedings involving the custody and / or visitation of the child that would have an effect on the grandparent’s petition for visitation. If a case is pending with the court, the grandparent seeking visitation would join those proceedings in order for their petition to be heard in the best interests of the child.
- Examples of applicable family law proceedings include:
- Divorce actions
- Parentage proceedings
- A child support case
- Domestic violence restraining orders
Applying for Grandparent Visitation: A Step by Step Guide
One of the reasons the process is difficult is because there are no official “grandparent visitation” court forms. Instead, the courts have identified “local forms” and templates that may be used. Each family law court uses its own unique set of forms and templates, so it is important to ensure that the correct documents are provided to the Court in order to prevent any delay or dismissal of the petition.
- Generally, the following is the procedure for petitioning the court for grandparent visitation:
- Determine whether there is an existing family court case already open. It is very important that any grandparent seeking visitation first determine whether there is already a pending family court case involving the custody, support, or visitation of the grandchild. If there is an existing case, your petition may join in those proceeding.
- Fill out the required court forms. Each family law court has adopted its own forms and templates for grandparents seeking to petition for visitation. In general, a Request for Order form or “Form FL-300” must be filled out in order to initiate a new case. This form requires grandparents to explain what type of visitation schedule is being pursued, and to justify why the court should award reasonable visitation to grandparents. The court will want to know why it is the grandchild’s best interests to have visitation with his or her grandparents, the nature of the grandparent’s relationship with the grandchild, and any other relevant factors impacting visitation.
- Have the forms professionally reviewed before submission. Regardless of whether or not an attorney is hired to represent a grandparent visitation petition, it is very important to have any and all forms professionally reviewed prior to submission to the court. An experienced family law attorney is able to check the petition forms for accuracy and determine whether or not good cause is presented for the Court to find that grandparent visitation is indeed in the best interests of the child.
- Make a minimum of three copies of each form. Whether initiating a case or joining one, multiple copies of the form are needed for all parties involved. One copy is filed with the court, another copy retained by the grandparents for their records, and additional copies will be required for each of the other parties involved in the proceedings. The original copy with original signatures is always filed with the court.
- File the forms. The original copies of the petition forms are filed with the court clerk, who will stamp all copies with a “Filed” stamp. Additionally, the clerk’s office will require filing fees be paid to the court. If the grandparents are unable to pay the filing fee, it may be possible to qualify for a fee waiver.
- Schedule a court or mediation date. Upon filing the initial petition with the court clerk, the clerk likely will provide a date for a hearing or mediation. Often, the Court will require mediation to be exhausted prior to any hearings on the matter.
- Serve the required paperwork on the parents of the grandchild. As soon as the petition paperwork is filed with the court, and all copies are stamped “Filed,” the paperwork must be served on the parents. California law requires that the parents have notice, including stepparents or anyone who has physical custody of the grandchild. Service must be conducted by an individual who is 18 years or older and who is not one of the grandparents seeking visitation. Along with the filed paperwork, the additional parties must be served with an unmarked Responsive Declaration to Request for Order (Form FL-320). If this is a new case, the service must be done in-person, not by mailing. If the petition is seeking to join an existing family court case involving the custody or visitation of the grandchild, service and notice may be conducted by certified mail with a return receipt requested to each parent’s last known address or to each parent’s lawyer in the matter.
- File proof of service. Once service of process is completed on the other parties in the case, the person serving the papers must fill out and provide Proof of Personal Service Form FL-330 or Proof of Service by Mail Form FL-335.
- Attend all court hearings and mediation appointments. Once all of the filing and notice requirements have been met, a court hearing or mediation will occur. The grandparents will be required to attend these proceedings. As discussed, mediation is likely to be required in order to reach a non-judicial visitation schedule. If such an agreement cannot be reached, the case will proceed to a court hearing, where the Court will determine whether to grant visitation.
For more information, or to schedule a free case evaluation with a San Bernardino family lawyer, please call our office at (909) 315-4588.
[i] Cal. Fam. Code § 3102
[ii] Cal. Fam. Code § 3104(b)
[iii] Cal. Fam. Code § 3104(b); Marriage of Harris (2004) 34 Cal. 4th 210, 211
[iv] Cal. Fam. Code § 3103
[v] Cal. Fam. Code § 3104(b)(5); Finberg v. Manset (2014) 223 Cal. App. 4th 529, 532
[vi] Cal. Fam. Code § 3102(c)
[vii] See Punsly v. Ho (2001) 87 Cal. App. 4th 1099, 1108; Kyle O. v. Donald R. (2000) 85 Cal. App. 4th 848, 863; see also Ian J. v. Peter M. (2013) 213 Cal. App. 4th 189, 204.
[viii] Marriage of Harris (2004) 34 Cal. 4th 210, 222
[ix] Cal. Fam. Code § 3103(a).
[x] Cal. Fam. Code § 3103(e), (h); see also Cal. Fam. Code § 8512.
[xi] Cal. Fam. Code § 3103(d).
- Thinking about filing for divorce
- Concerned about custody of your children
- Worried about the division of your property
What is a contested divorce
When spouses don’t agree on an issue, whether it involves child custody or spousal support, a divorce is considered contested. It is the most complicated type of divorce, as a couple will need to go through numerous steps to finalize their divorce. Since contested divorces often go to divorce court with a judge, having legal representation during the trial is crucial.
How is spousal support or alimony calculated
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Who pays child support and how is child support determined
The noncustodial parent will be responsible for child support if the court determines it is necessary or parents come to an agreement to be approved by the court. The factors used to determined child support include the income / earning capacity of each parent, the number of children shared, each parent’s expenses, child care expenses, and other related issues.
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