Few things in life are more exciting than becoming a grandparent. Despite its benefits, though, this relationship comes with a lot of uncertainty, as well, since grandparents do not have the same rights as a child’s biological (or adopted) parent.
On the bright side, however, just because a grandparent doesn’t have the same rights as a parent, doesn’t mean they don’t have any at all. And, indeed, it may be possible for a grandparent to qualify for visitation and custody, if certain requirements are met.
Here’s what you need to know about grandparent’s rights in California, and what the Maples team can do to help you navigate these important issues.
Grandparent’s Rights: Not the Same Thing as Parental Rights
To begin, what are grandparent’s rights, exactly? And how do they apply to you?
Unfortunately, there isn’t a clear-cut answer to this question (probably because grandparents don’t inherently have them…). However, grandparent’s rights can generally be defined as the power and authority to care for their grandchild, and to influence their life.
Compared to parental rights, though, this authority is extremely limited.
In California, it is parents—not grandparents—who have full legal and physical custody over their child. This includes the right to live with and care for their child, make decisions for them, and to determine how they will be raised. These custodial powers are inherent, and cannot be taken away unless it is in a child’s best interest (usually only in cases of neglect or abuse).
Grandparents, on the other hand, do not have these inherent rights. You
may have raised that child’s parent, but unfortunately, that doesn’t give you the right to be the Ultimate Authority in your grandchild’s life.
That being said, a grandparent might qualify for some limited rights—but only if certain requirements are met. Here’s a closer look at what we mean.
Grandparent’s Rights: When Parents Get Divorced
There are two main branches of child custody: legal and physical. In California, legal custody deals with decision-making power, while physical custody governs a child’s physical time, including visitation schedules, and where they will live. When the court is presented with either a divorce, or a paternity case, these custodial powers must be divided, according to a child’s best interest.
If you are a grandparent in one of these scenarios, we can fairly confidently declare that you will not receive any legal authority (a.k.a. decision making power), so long as both parents are alive and fit. However, it may be possible for you to sue for visitation.
In California, a grandparent may request “reasonable visitation” with their grandchild, if:
- There is a pre-existing relationship between grandparent and grandchild; and,
- It would be in the child’s best interest to keep that relationship going through visitation.
But what do these requirements mean, exactly? What qualifies as a pre-existing relationship, and how does the court determine whether you are in your grandchild’s best interest?
Pre-existing Relationship and Best Interest of the Child
As with grandparent rights, there is no set definition or timeline requirement for what qualifies as a “pre-existing relationship.” Instead, the court will simply look at whether or not it was enough time to form a meaningful bond, and whether it’s in the child’s best interest to keep that bond going.
Again, much of this is subjective, but when determining a child’s best interest, some of the factors the court might look at will include:
- The child’s overall health, safety, and well-being;
- Any history of domestic violence or abuse by anyone seeking custody—whether grandparent or parent;
- Any drug or alcohol use; as well as,
- How often the grandparent was in contact with the child, prior to suing for visitation.
With these questions in mind, the court will then weigh arguments for and against visitation, to determine what will serve the child best. If the child is over fourteen, then the judge will also take their wishes into consideration (though, they aren’t required to do what the child wants).
Divorce is (by far) the most common trigger for grandparents seeking visitation rights, but what if you want visitation when the child’s parents are still married? What then?
Grandparent’s Rights: When Parents Are Still Married
When it comes to custody and visitation, California courts follow the Best Interest of the Child standard. This legal principle puts a child’s interests above everything else, making their health and wellbeing the driving force behind every decision made in that case.
And—according to a longstanding history of California common law—the best interest of a child is to stay with their parents, whenever possible. Unfortunately for grandparents, this means that most of the time, you cannot petition for rights while the parents are still married.
There are, however, a few limited exceptions, and you may still be able to file, if:
- The parents are living separately, or are legally separated;
- A parent’s whereabouts have been unknown for at least a month;
- One of the parents joins the petition for visitation;
- The child doesn’t live with either of its parents; or,
- A stepparent has adopted the grandchild.
That being said, even if you do qualify under one of these circumstances, your rights can be terminated at the request of either parent, if the qualifying circumstance ever changes.
If this happens, the court will honor parental authority, and terminate your grandparent visitation rights. In order to reinstate them, you’ll need to file another petition with the court.
How to File for Grandparent Visitation in California
If you’re interested in petitioning for grandparent’s rights in California, you’ll need to follow these steps:
- Determine whether there’s an open case. If a case involving the child (or their parents) already exists, then you should file your petition under that case. If not, you’ll need to open a new one.
- Fill out paperwork. To initiate a new case, you’ll need to file several forms, including a Request for Order, and a Child Custody and Visitation Application. On these forms, you should explain what type of visitation you want, and why in as much detail as possible.
- Make copies. Part of initiating this case involves serving each of the child’s parents with copies of your paperwork. Hence, we recommend making at least three copies of everything, before you file.
- Submit forms. Once everything is complete and copied, the next step is to file your documents with the county clerk; this will include paying the filing fee. (If you can’t afford to, you should request a fee waiver.)
- Execute proper service. Part of filing includes notifying the child’s parents that you’ve initiated a case. This must be done via proper service, or it will not be valid.
- Attend your hearing. Once these steps are complete, the last thing left is to attend your hearing. At that time, both sides will have the chance to present evidence, after which the judge will make their decision.
As a general rule, arguing for grandparent visitation is a very high bar to clear. Your judge will be operating under the assumption that the child’s best interest is with its parents; meaning that you’ll essentially be arguing that the parents are not in their child’s best interest.
If this is truly the case, then you might want to ask yourself if grandparent visitation is the right answer, at all, or if, perhaps, some other solution might be better.
Is Grandparent Visitation the Right Answer?
If your grandchild is being neglected or abused, then visitation might not be the right answer, at all. Instead, you might want to sue for guardianship, or even full custody.
Domestic violence is something California courts take very seriously. If you believe your grandchild might be experiencing harm from their parents, then it might be time to talk to a family law attorney about what other (more permanent) options are available.
Do You Have More Questions About Grandparent’s Rights in California?
Becoming a grandparent is one of the most rewarding experiences in life. And while you may not have as much authority over your grandchild as their parent, there are circumstances that could warrant grandparent visitation, guardianship, or even custody.
If you have more questions about grandparent’s rights in California, and what that might look like in your situation, we want to hear from you. Contact the Maples Family Law team today at (209) 910-9865, or schedule a consultation online, and let us help you get the best arrangement for your grandchild.