Custody disputes can be complicated no matter the circumstances. However, matters can feel especially delicate when grandparents seek custody of or wish to maintain some sort of relationship with their grandchildren over the objections of the child’s parents. Nevertheless, doing so is sometimes necessary to protect the interests of your grandchild. While making the decision to seek custody or visitation of your grandchild can be difficult, it’s important to remember that you are not alone. Use our guide to learn more about whether and how to seek custody of your grandchild in California and see what the team at Pakpour Banks LLP can do to help you move forward. Contact us today to speak with an experienced family law attorney about your case!
Seeking custody of your grandchild in California?
Courts must find that living with a parent would be detrimental to the child before granting a grandparent custody, so these cases require real evidence, not just good intentions. If custody doesn’t fit your situation, visitation rights may still be available. Our Davis-based team can help you understand which path applies to you.
When Can Grandparents Get Custody in California
Yes, under California law, grandparents can seek custody of their grandchildren when it’s in the child’s best interest and parental custody would be harmful. California Family Code Section 3041 allows courts to grant custody to non-parents, including grandparents, if there’s clear evidence that living with the parents would be detrimental to the child. Common qualifying situations include parental incarceration, substance abuse, mental health issues, or domestic violence. While parents generally have the constitutional right to make decisions for their children, courts prioritize child safety and may intervene when necessary. If you’re unsure whether custody or visitation is appropriate in your case, speaking with a family law attorney can help clarify your options and next steps.
Grandparents’ Custody Rights Under California Law
Parents have a constitutional right to raise their children as they see fit, including whether and to what extent they wish to extend visitation and other rights to the child’s grandparents. See Troxel v. Granville, 530 U.S. 57 (2000). Nevertheless, there are certain scenarios in which a grandparent may be entitled to seek custody or visitation rights when it is in the child’s best interests. Here are a few things to know when it comes to seeking custody of your grandchildren in California.
When You Can Pursue Custody of a Grandchild in California
Generally speaking, it is the public policy of the state to ensure that a child should have continued contact with both parents where possible. Sometimes, however, it may be better for the child to be cared for by someone other than one or both of their parents.
California prioritizes child safety. Family Code Section 3041 allows non-parents, including grandparents, to gain custody if it benefits the child.However, before granting custody to a grandparent over the objection of a parent, the court must first make a finding that:
- Granting custody to a parent would be detrimental to the child; and
- Granting custody to the grandparent is necessary to serve the best interests of the child.
Thus, obtaining custody of your grandchildren is not automatic or easy by any means.
How to Prove That a Grandparent Should Have Grandchild Custody Rights
The primary inquiry in granting custody is determining what is in the best interest of a child. There are a number of factors that a court will consider in determining whether granting custody to a grandparent is in the child’s best interests. While each case is different, below are some examples of situations where a court might grant custody to a grandparent, rather than a parent, in the best interest of the child:
- One or both parents are incarcerated and are unable to adequately care for the child;
- The parents are deceased;
- There is evidence that one or both parents are suffering from drug abuse or addiction;
- There is evidence of domestic violence between the child’s parents; and
- One or both parents are suffering from mental health concerns.
Importantly, this is not an exhaustive list, and there are a variety of ways to prove that granting custody to a grandparent is ultimately in the child’s best interests.If you have questions about whether you may be able to seek custody of your grandchildren, speak with an experienced family law attorney to discuss the facts of your case in more detail.
Grandparent Visitation Rights
Notably, even if you are unsuccessful in seeking custody of your grandchild, it’s important to remember that you may still have rights you can pursue. For example, California Family Code section 3104 states that a court may grant reasonable visitation rights to a grandparent if it finds that:
- Granting visitation would be in the child’s best interest because there is a preexisting relationship between the grandparent and their grandchild that has “engendered a bond” between them; and
- Doing so would balance the interest of the child having visitation with the grandparent against the right of the parents to exercise their parental authority.
While being denied custody may feel discouraging, take heart in knowing that other options still exist to allow you to maintain your relationship with your grandchildren.
California Child Custody Attorneys You Can Trust | Pakpour Banks LLP
Grandparents play a crucial role in the lives of many children. Thus, protecting your rights as a grandparent is not something that should be taken lightly. At Pakpour Banks, we pride ourselves on providing excellent representation to our clients while doing so as efficiently and cost-effectively as possible.If you have questions about your custody or visitation rights as a grandparent, contact our team to discuss your case and see how we can help you meet your legal needs today.
FAQs
Do Grandparents Have Default Custody or Visitation Rights with Respect to Their Grandchildren?
Technically, no. By default, grandparents are not entitled to any custody or visitation rights over their grandchildren. That said, grandparents do have rights under California law to seek custody or court-ordered visitation with their grandchildren where certain factors exist. Doing so is not always easy, but it is certainly possible.
Which One Should I Pursue Custody: Custody of My Grandchildren or Visitation?
Some grandparents may ultimately believe that the child’s parents are fit to care for and make decisions on behalf of the child but still wish to maintain a relationship with their grandchild. In other cases, allowing the child to continue residing with their parent may be detrimental to the child’s health, safety, or overall well-being. In these cases, a grandparent may seek custody, rather than visitation, to protect the child’s best interests. In short, the answer to this question will vary widely depending on the particular facts and circumstances surrounding your case. If you’re not sure whether custody or visitation makes more sense for you, speak with an attorney to discuss your options in more detail.
Do You Need to Hire an Attorney to Obtain Grandchild Custody or Visitation in California?
No, you do not have to hire an attorney to represent you in any legal action to obtain custody of or visitation with your grandchildren. That said, having an experienced family law and custody attorney can be beneficial to your case. From filing important legal documents to appearing in court on your behalf and everything in between, a lawyer can help you save significant time, expense, and stress in the long run. Give us a call today to discuss your options.
Brian enters the family law profession with a refreshing approach to these proceedings: heal families; don’t destroy them. In some cases, this means the family is going to look different than it did before. In other cases, this means a new family is created where there was none before. Either way, individuals should leave family court knowing their voices were heard, and with healthy attitudes about themselves and those they love.