Grandparents share a special bond with their grandchildren and can play a huge role in the life of a child. But when dealing with a couple going through the divorce process, grandparents are all too often left on the outskirts wondering how the relationship and the bond with their grandchildren will be affected.
The main objective, in regards to grandparent’s rights, is to ensure the child has continued access to the grandparents. This helps to facilitate the important emotional and developmental impact grandparents have in the lives of their grandchildren.
The Basics
A child needs grandparents, and other family members in their lives in order to become a healthy, well-functioning adult. Laws involving grandparent visitation can often be expanded to include other family members as well, including siblings and extended family. This can be referred to as 'third party visitation' or 'non-parent visitation'.
Grandparents Visitation Rights
Grandparents are not automatically allowed visitation rights with their grandchildren. In cases where grandparents are concerned with visitation and even custodial rights, grandparents can work with an experienced San Diego Family Law Attorney to petition the court to grant reasonable visitation rights with their grandchildren. Grandparents can petition for visitation rights in a number of circumstances, including:
- One or both parents are deceased
- Parents are separated or divorced
- A parent's location is unknown
- Child resides with neither parent
- A stepparent has adopted the child
- The child has been placed in foster care
In order for the court to consider and grant these rights, it must be proven to the court that a viable, healthy grandparent-grandchild relationship existed before the petition for grandparents rights was filed with the court on their behalf. It's important to work with a knowledgeable family law attorney who has an in-depth understanding of the complex laws and state statutes to help you navigate this process.
Additionally, it must be proven that it's in the best interest of the child to visit with the grandparents. Other factors the court will take into consideration is the right of the parents to make decisions regarding their child. This means the court will make it's decision as they balance the child's best interest concerning grandparents rights and the parental authority to make decisions for the child.
State statutes and other factors that are considered when determining grandparents rights and what is in the best interest of the child can include:
- The physical and emotional health of the child
- The safety and welfare of the child
- The wishes of both parents and grandparents
- The wishes of the child, depending on age and ability to make decisions
- The strength of the grandparent-grandchild relationship
- The length of grandparent-grandchild relationship
- Capabilities of parents and/or grandparents to meet the child's needs
- Evidence of neglect, physical and/or substance abuse by parents/grandparents
- Necessity and effects of adjustment to home, school, or community by the child
- The grandparent's ability to provide love and affection for the child
- The distance between child and grandparents
- The effect a court-ordered visitation agreement will have on the relationship between parent and child
If both parents are in agreement and contest that the court should grant grandparents visitation rights, the court will assume that visitation with the grandparents is not in the best interest of the child.
Grandparents Custodial Rights
Statutes will vary from state to state, so it's important to work with a San Diego Family Law Attorney who understands the complex laws and process when it comes to grandparents rights. In some cases, grandparents may petition the court and fight for custodial rights of their grandchild. In cases where the biological parents are incapable of caring for the child, are incarcerated, or have passed away with no custody plan in place, grandparents can be awarded custody by the court.
It's important to remember that a court will only grant custody of a child to a grandparent, or non-parent if it is determined that it would be detrimental to the child to be placed with a parent. Once it has been determined that parental custody would be detrimental to the best interest of the child, the court will then begin evaluating whether grandparent custody serves the best interest of the child to make a final custodial determination.
There are two types of custody for grandparents and non-parents: Adoption and Guardianship. Here's what you should know about the differences between the two.
Guardianship – Guardians are supervised and must periodically check in with the California court in order to access the health and well-being of the child. Parents will still have the right to make decisions on their child's behalf in regards to what's best for the child. Parents will also have visitation and contact rights until otherwise ordered by the court. A non-parental guardianship can also be terminated, and the children returned to the custody of the parents if the courts find that the parents are fit and capable to raise the child.
Adoption – Adoptive parents are not required to periodically report to the court for supervision. Adoption effectively terminates the parent's right to make any decisions on the child's behalf. There are no parental rights, including contact and visitation rights under this distinction.
Alternative Options
In some cases, disputes involving the rights of grandparents can be resolved without the process of litigation. Often times, mediation serves as an effective way to settle such disputes by enlisting the help of a neutral, third party who is qualified to address the issues.
Mediation participants can take advantage of creating highly-specialized agreements that work best for everyone instead of leaving the future of your family in the hands of the court. During the mediation process, both sides can learn how to communicate and cooperate effectively, working together to find a reasonable, legally-binding solution that serves the best interest of the child.
Advantages of Mediation
Litigation should always be the last resort in any matter, it's usually best to try finding a resolution through other means first. Of course, finding an amicable solution with the child's parents is recommended before escalating matters. If one or both parents are unwilling to find an amicable resolution to the issue amongst the family, the next viable option would be mediation with a qualified, neutrally-invested team of family law professionals.
There are a variety of compelling reasons to attempt solving issues through mediation before choosing litigation. Grandparents, parents, and children can benefit from mediation. Some advantages of choosing mediation before litigation include:
Non-adversarial Approach
Typically, mediation allows everyone involved to speak more freely in a non-confrontational environment. In most jurisdictions, nothing you say or do in mediation can be used later during a trial in the event mediation attempts fail. It's important to consult with a legal professional who can help you better understand and explain the process of mediation.
By choosing a non-adversarial approach when seeking grandparents rights, the parents may be more willing to find a more peaceable compromise that works for everyone while maintaining the best interests of the child. This can help to preserve a healthy, stable relationship between everyone involved during this process and moving forward.
Neutral Environment
The mediator, and other professionals involved during the mediation process act as neutral parties, with no investment to either side. The mediation process was designed to work collaboratively with all parties, in a neutral environment, to find an amicable solution that will serve the best interest of everyone involved. This will undoubtedly require compromises to be made by both sides, but the results of this beneficial process can impact the future relationships of everyone involved in a positive, healthy way.
Less Time and Money Spent
By choosing mediation, and avoiding court, solutions can be reached more quickly. This means less time lost from things like travel and time off work needed to attend meetings and court appearances. The mediation process is typically less expensive than traditional proceedings. Rather than each party spending money to hire separate attorneys, both sides can hire one professional to help mediate and reach an agreement that everyone can agree on. This agreement can then be submitted for approval from the court without the need for costly litigation proceedings.
Healthier Outlook for the Future
By choosing to work with a collaborative San Diego family law attorney through mediation, you are setting the tone for your relationships as you move forward. It's important to work together to find a healthy way to cooperate and communicate during, and after, this process.
Diffusion of Anger and Hostility
If the grandparents and parents of the child(ren) simply can't be in the same room with each other, the mediation process may still be a viable, productive option. This process can be done separately, accommodating the adversarial relationship while continuing to work towards an amicable solution. The mediation process helps opposing parties put aside personal issues and focuses on the best interest of the child.
Increased Success Rate
Mediation provides a step-by-step process to help grandparents and parents achieve an amicable solution to their issues. By finding ways to work together in creating a customized solution, opposing sides are more apt to continue to adhere to the agreement in the future.
Frequently Asked Questions About Grandparents Rights
What if my grandchild no longer lives in California?
If grandparents visitation rights have been awarded by the California courts, and the child moves to another state, visitation can still be enforced. The Visitation Rights Enforcement Act allows grandparents to visit with grandchildren regardless of where they live currently.
When can I file a petition for grandparent visitation?
A petition cannot be filed while the biological or adoptive parents are still married unless there are extenuating circumstances. These situations include, but are not limited to:
- Parents are permanently or indefinitely living separately and apart
- The location of one parent has been unknown to anyone, including the other parent, for more than one month
- Grandchild does not live with either parent
- Grandchild has been adopted by a step-parent
- One of the grandchild's parents joins the petition with you
What if something happens and my adult child passes away?
If your adult child passes away, your visitation rights are not terminated. You still maintain the same rights to see your grandchildren as you did before the loss of your adult child.
What if one of the child's parents remarry, and the step-parent adopts my grandchild?
If a step-parent legally adopts the child, grandparents visitation rights are not affected. Regardless of adoptions status, grandparents still have the right to maintain a parental, judicially approved relationship with the child.
What if one or both parents object to grandparent visitation/involvement?
According to California Family Code s.3105, a parent's basic right to maintain custody, care, and management of their children is compelling but not absolute. The State of California maintains that children have the right to continued, healthy relationships with those who have served in a significant role in the child's life.
The California court will certainly consider a parent's objections to grandparent visitation during proceedings. But, the focus will remain on what is in the child's best interest. If the court finds a continuing relationship with the grandparents would be detrimental to the child, or the parent/child relationship, the petition for grandparent visitation may be denied.
The laws and limitations concerning grandparent’s rights are constantly changing. That's why it's important to work with a reputable San Diego family law attorney to navigate this complex area of family law.
If you are concerned and want to know more about your options as a grandparent, it's important to consult with San Diego Family Law Attorney, where out lawyers can help you understand your rights as a grandparent and the options you have.
Our team of family law attorneys can help you understand the laws concerning grandparent rights in California and offer a variety of options to help you plan the right approach for your unique circumstances. If necessary, your attorney can prepare and present your case to the California court.
If you would like to know more about your rights as a grandparent or need help starting the process of filing for grandparent’s rights, contact San Diego Family Law Attorney at 619-610-7425 so we can help!
