Child Custody Issues Between Parent and Grandparent

Child custody is one of the most sensitive aspects of family law, and it is a common issue that arises as a result of a divorce. In California, child custody could be awarded to either parent, depending on several circumstances. Custody could either be sole or shared if both parents meet the qualification criteria to take care of the child.

Since the law aims at doing what is best for a child, custody can also be awarded to the grandparents. This is often the case when the parents are deceased or are not physically or mentally fit to care for the children. Fighting for child custody is very complicated for parents. Therefore, it could be much more stressful for a grandparent. Whether you are a parent or a grandparent, we at the San Diego Family Law Attorney are ready to help you navigate the California custody issues.

Overview of Child Custody

Child custody is based on the rights and responsibilities of parents about taking care of their children. The issues of child custody often arise as a result of divorce, and the whole process can take a toll on the children. In California, there are two types of custody that can be granted to one parent or shared between both parents. After divorce, parents are required to agree on where the children will live and the parent to take care of other aspects of their life. If the parents cannot decide between themselves, a family law court will have to decide, depending on several factors.

California law is always focused on ensuring the best interests of the children after a divorce. The circumstances and home environment after a divorce could affect children, both physically and mentally. Therefore, child custody is a matter handled with great caution. If giving custody of a child to either parent is likely to cause significant harm, the court will allow a third party, particularly grandparents, to take custody.

However, even when you have the best interests of the child at heart, the court will not call upon you to take custody. You are expected to take the initiative and seek care on the basis that the parents cannot do so. If the judge finds the arrangement best for the child’s interest, you can be awarded guardianship. The process is not easy for grandparents who are seeking custody of their grandchildren. You may be required to prove your capability to provide a safe and suitable environment for the child, which is not available with either of the parents.

There are two categories of child custody that needs to be decided on:

Legal Custody

Having legal custody of a child allows you to make crucial decisions concerning their lives. Legal custody could be awarded to one parent, or it can be shared between the two. If parents are proven unfit to make these decisions, a grandparent can seek legal custody over the child. A person who possesses legal custody has a responsibility to make the following choices over the children:

• Education. When you are awarded legal custody of the child, you should make decisions on the type of training and schools you want them to attend. For younger children, you decide on child care.

• Mental and psychological health counseling. When you have sole legal custody of a child, it is entirely your choice as to the type of treatment you want them to undergo. However, if the custody is joint, you need to consult the other parent.

• Residence. Where a child is toChild Custody Issues Between Parent and Grandparent live is a decision made by a parent who was awarded custody either by the judge or an agreement between involved parties.

• Travel, including where children can go for vacations.

• Religious activities that are to be partaken by the children

Physical Custody

Physical custody is based on where a child will live after the divorce. Under some circumstances, the court may award sole physical custody to one parent, and the other parent could visit. However, physical custody could also be shared, and the children can spend time with both parents. Also, custody allocation does not affect child support. The parent who isn’t awarded custody is required to make their contributions as ordered by the court.

When living with the parents is not conducive for the children, a grandparent can be allowed to seek legal or physical custody. However, it is crucial to understand that this could be a very complicated process, especially when both parents are alive.

Factors Considered When Awarding Child Custody in California

Child custody is a battle that arises from a divorce. The parents can choose to make the arrangements on their own. Unfortunately, some divorces do not end well, and parents are not able to agree. In this case, a family court will be involved. A decision to award custody is not taken lightly, and the following factors will be considered:

1. The child’s age. When awarding child custody, the court will consider the age of the child. Children who are younger than two are more likely to be dependent. Also, at this age, children may get separation anxiety if they do not spend time with both parents. In this case, physical custody could be awarded to the parent who has a more substantial physical bond with the child. However, frequent visitation for the other parent will be granted to avoid separation anxiety.

2. The health status of the child whose custody is in question is a vital factor in custody cases. When a child with unique health or psychological needs is involved in custody battles, the court will consider their status when awarding custody. The parent who is more involved in taking care of the child’s health needs would be considered as the custodial parent. 

3. Physical, mental, and financial ability of the parent or other custodial party will be considered. Whether child custody is awarded to the parents or to a third party like grandparents, their ability to take care of the child will be considered. Your ability to take care of a child is measured using your mental, physical, and financial capabilities. If, as a grandparent, you think that your grandchild could be better off with you, your physical, mental, and economic status will get considered.

4. The parent has a history of violence or substance abuse. California family court will always consider the best interests of a child when awarding custody. If a parent has ever been accused of physical or mental child abuse, the court may be reluctant to award child custody when a grandparent if fighting for custody based on violence from the parents, recent evidence that the parents continue to pose a danger to the child.

5. A child’s tie to the community and school. When parents get a divorce and custody comes into play, children may be forced to move to other locations depending on the outcome of the custody case. The court will consider how a child’s ties to the community and the school will be affected by the decision they make.

6. Child's preference. Children, especially those above the age of fourteen years, are capable of making some decisions about their lives. In custody hearings, the judge may want to listen to the child’s opinion on where they would want to live. However, it is not entirely up to the child to make the decision; other factors will be considered.

7. The impact on the child after changing their living arrangements is crucial. When parents get a divorce, children are most affected by the separation. When awarding custody to the parents and third parties, the judge will consider how the child will be affected by changes that occur as a result of divorcing parents.

Grandparent Custody and Visitation Rights

Children often have physical and emotional bonds with their grandparents. This relationship is challenging to preserve when parents get divorced. Grandparents who have a significant relationship with the children and play a role in the child’s life could have an opportunity to get custody or visitation rights. If you are filing full custody for your grandchild, you can file a petition in court.

As a preliminary matter, the court will require you to prove your age, financial, and health situation, which allows you to take care of the children properly. The court will then consider the best interest of the child and the impact of the parent’s control in upbringing. For a better chance to get custody of your grandchild, you need to have a strong case against the parents.

If both parents are alive, you need to prove that they are unfit to be with the child and your grandchild would be better off with you. Most courts prefer that children stay with their parents and the grandparent’s right to obtain the custody is limited to the following circumstances:

• The parents are deceased. In the event where both parents of a child are dead, the court could consider a grandparent as a potential caregiver. When a parent who has custody over the child dies, the court prefers to put the child with the other parent. Therefore, you will need to have a strong reason to believe that the child is not safe with their parents. However, you can still have a chance to get custody over your grandchild when one parent is deceased. This would be the case if the child and diseased parent used to live with you. The court values the child’s stability and can consider you for the child’s full custody. If you want custody of a child, you will be required to show interest in getting custody and petition in family court. With the help of a competent family law attorney, you can prove that you are capable of taking care of the child.

• The child’s parent can consent to give up child custody. When the parents of a child are alive, it is difficult for the grandparent to get child custody. This is because the court prefers that children live with their parents. However, parents can give up child custody rights to a grandparent.

• The child lived with the grandparent for a period exceeding one year. When navigating custody matters, the judge may consider a child’s bond and contact with the grandparent before the custody case gets filed. Therefore, if you have spent a significant amount of time with your grandchild, you are eligible to get the child’s custody.

• Parents are proven unfit to retain custody. When parents split up, they are expected to decide on custody matters. However, if the decision cannot be made, the court will intervene. In a custody proceeding, the judge will ensure the child’s best interests when making decisions. If parents are unfit to take care of the child, custody could be awarded to a third party. If you have been involved in your grandchild’s life, you can get custody of the children. When filing for custody, you are expected to prove that the parents of the child are unfit to care for them. This could either be physical or mental incapability.

• History of Violence from the parents affects custody. If you can prove that there have been reports of child abuse from the parents, you have an opportunity to get custody of your grandchild. Abuse could either be physical, emotional or neglect.

Grandparent Visitation Issues

In the event of a divorce, the interaction between the children and grandparents may be limited. If you want to maintain a relationship and contact can try to reason with the custodial parent for visitation rights. However, if all non-legal matters are exhausted, you can petition the court for the rights.

For grandparents, visitation orders will have a specified time and circumstances. Other than a divorce, the death of one parent is another situation that could trigger a court to grant grandparent visitation rights. However, such visitation will be given if the court finds that it is in the child’s best interests. 

FAQs on Grandparent Child Custody Issues

The following are some frequently asked questions about parent and grandparent issues on child custody in California:

1. Can a grandparent get child custody over the parents?

When both parents are alive, the California custodial court prefers to put the child with the parents. Even when the custodial parents die, the judge may consider placing the child with the other parent. However, if the parents are mentally unfit to take care of the child, a grandparent can be awarded custody. Sometimes the parents can also decide to give up their custodial rights to grandparents. Getting child custody of your grandchild can be quite tricky, and it would be wise to enlist legal representation.

2. How can you prove that a parent is unfit to care for the child?

Parent unfitness is often the basis of child custody issues between the parents and grandparents. You can prove that a parent is unfit to retain child custody when the safety and health of the child are at risk. Also, parents who have a history of violence and abuse are deemed unfit by the family court.

3. Who will be responsible for child support when grandparents get custody?

In most cases, child custody is awarded to grandparents when biological parents are deceased or incapable of ensuring the child’s wellbeing. Therefore, even when you are awarded custody of your grandchild, the parents are obligated to pay child support. Failure to do so, you can sue them for failure to support the child.

4. Are grandparents allowed visitation with a child when custody is awarded to the parents?

When parents are still married, most grandparents have a good bond with the children. However, divorces can put a toll on these relationships. Even when the court awards child custody to the parents, grandparents could be eligible for visitation rights. Although the arrangement could be quite challenging, the judge will consider what is best for the child.

5. Can I adopt my grandchild?

California family law allows a grandparent to adopt their grandchild with or without consent from the parents. When it is clear that staying with the parents could be detrimental for the child, a grandparent will be allowed to adopt them. However, the grandparents need to show that they are physically, mentally, and financially capable of caring for the child.

Find a Competent Family Law Attorney Near Me

The law has clear guidelines when ensuring that both parents are involved in child care and upbringing, and these guidelines do not apply to grandparents. However, family courts make it possible for a grandparent to fight for permanent custody of a grandchild. You will be required to prove that the child’s safety, health, and wellbeing is in danger as a result of neglect or abuse from one or both parents. Also, you need to be sure that you are financially and physically fit to take care of the children. If you are concerned about the wellbeing of your grandchildren, you should seek the help of a family law attorney. Get in touch with the San Diego Family Law Attorney today at 619-610-7425 to talk to a competent attorney.