FAQ: My ex son-in-law has custody of my Orange County CA grandchildren and will not allow me to see them, what can I do? What about my grandparents' rights to custody of grandchildren?
Grandparents’ Rights to Custody of grandchildren in California
As a grandparent in California, you may be able to legally enforce your visitation rights with your grandchildren, especially if your grandchild’s parents are divorced and your former son or daughter in law will not allow you to see your grandchild.
Grandparent’s rights are not as easy to enforce as the rights of a parent, and you will need to meet certain criteria in order to establish or enforce your right to spend time with your grandchild. California law states that it will allow ‘reasonable visitation’, which may depend on each specific situation. Your existing relationship with your grandchild will also come into play.
If you have concerns about spending time with your grandchildren in California, it is a good idea to discuss your family situation with a qualified attorney, especially one that has experience in family law and child custody in California.
Do I Have the Right to Visitation with My Grandchild in California?
In California, you may legally establish and enforce ‘reasonable visitation’ with a grandchild. In order to have a legal right to visitation with your grandchild, you need to meet both of the following requirements.
In California, you may legally establish and enforce ‘reasonable visitation’ with a grandchild. In order to have a legal right to visitation with your grandchild, you need to meet both of the following requirements.
• You need to have a pre existing relationship with your grandchild, and that relationship must have ‘engendered a bond’. In simple terms, it must be in the best interest of the child to spend time with you as a grandparent.
• Visitation with you must balance with the parent’s rights to make decisions for their child. Both the visitation and the parents’ decisions must be in the best interest of the child.
Grandparent’s Rights to Visitation When the Parents are married
In most cases, a grandparent cannot ask for visitation rights with a grandchild while the parents are married. Usually, doing so would interfere with the parent’s rights to make decisions about their child, and the parents are assumed to make decisions in the best interests of the child.
However, there are exceptions to this rule, and in the following situations, a grandparent may request legal visitation rights to a child while the parents are married.
• If the parents are legally separated,
• If the parents live separately,
• If either of the parents is missing, and his or her whereabouts have been unknown for at least one month,
• If the child does not live with either of his or her parents,
• If one of the child’s parents also wishes for the grandparent to have visitation rights,
• If a stepparent has adopted the child,
• One of the parents has been involuntarily institutionalized or is incarcerated.
A grandparent may also ask for visitation rights if the parents are divorced, and it is more likely to be granted in that situation. If your former son or daughter in law will not allow you to spend time with your child, and the child’s parents are not married, always discuss your case with an attorney prior to filing a case.
A Parent’s Right to End Grandparent Visitation
In most cases, it is in the child’s best interest as well as the best interest of the family for a grandparent to spend time with the child on the parents’ terms.
If the above situations are true at the time that a grandparent applied for and was successfully awarded visitation rights with a grandchild, those visitation rights will be valid as long as it is in the best interest of the child, and the situation has not changed. However, if the child’s situation changes and the parents are no longer separated, live together, live with the child, or the parent who supported visitation no longer wishes for the grandparent to have visitation the parent may terminate the grandparent’s visitation rights through the courts.
In most cases, it is in the child’s best interest as well as the best interest of the family for a grandparent to spend time with the child on the parents’ terms. If you can work it out outside of court, your child’s parent may be more likely to support your visitation and you won’t have to worry about the termination of your rights.
Things to Consider When Requesting Visitation with a Grandchild
When you are considering requesting visitation rights with your grandchild, remember that all custody and visitation orders regarding a child in California are made in the best interests of the child. If visitation with you is found to be detrimental to the child’s best interests, the court may not grant visitation, or terminate visitation at any time.
Protective Orders
If a protective order has been directed at you as the child’s grandparent prior to or during the grandparent visitation proceedings, it will be taken into consideration. Instances or accusations of substance abuse, child abuse, domestic violence, etc. are not in the best interest of any child, and can affect your chances of successfully obtaining visitation.
Notification of the Child’s Parents
Prior to obtaining a valid child visitation order from the court, you will be required to notify both parents and any person who has custody of your grandchild of your petition for visitation with your grandchild.
The Parent’s Rights
If the child’s parents are not married and you are requesting visitation with your grandchild, it is important to remember that the parents will likely already have their own custody and visitation order in place. Especially when one parent has sole custody, your visitation rights must not interfere with either parent’s rights to spend time with their child. The parents’ custody and visitation rights will usually be prioritized over the grandparents’ rights to visitation.
Asking the Court for Visitation With a Grandchild in the OC
Due to the complexity of grandparent visitation and the likelihood that there is already an existing custody case for the child of divorced parents, it is always advisable to discuss your situation with a qualified child custody attorney in the OC so that you know where to start.
Every situation is different, and the goal of grandparent visitation is to protect the best interest of the child. You may be able to request visitation with your grandchild under an existing case.
Find Open Cases in Family Court Regarding Your Grandchild
If there is an existing case regarding your family or your grandchild, you will need to file a petition for grandparent visitation under the existing case. In this situation you can start by filing the forms listed below.
If there is no existing case, you’ll need to open one. Contact your attorney or discuss your local family law facilitator for help.
The Court Forms: Filling Out, Filing & Serving
Once you have an open case, or you have found an existing case, you’ll need to fill out your court forms, have them checked by a qualified family law attorney in California, and file them with the court. There are no specific court forms regarding grandparent visitation, and the process may vary depending on the county in which you choose to file your case.
• Fill out a Request for Order - This form allows you to tell the court what kind of visitation you are looking for with your grandchild, and why you believe you should have visitation rights. Make sure to provide details about your relationship with your grandchild and why it is in the child’s best interests to spend time with you.
• Child Custody and Visitation Application Attachment
Remember that in order to file, you will need three copies in addition to the original: one for you and one for each of the child’s legal parents or guardians. The court will keep the original on file.
Once you have received your mediation and/or court date, you will need to serve the papers on the child’s parents and file a proof of service with the court.
Child Custody and Visitation Mediation & Hearing
Usually, in child custody cases, the court will order mediation so that the family has the opportunity to work out the issues on their own. Make sure to attend mediation and attempt to work out a visitation schedule with the child’s legal parents.
If mediation is unsuccessful, you will have a court hearing. At the hearing, the judge will make a decision based on the child’s best interests.
Following the hearing, if the judge determines that visitation with a grandparent is in the child’s best interests, the judge will sign a court order. Keep this visitation order in a safe place where you can access it in case you need to enforce it at any point.
You will also need to file a form called Findings and Order After Hearing. Remember that this is a complicated process, and it is usually better to work grandparent’s rights out before going to court.
Grandparent Visitation Attorney in the OC
If you are ready to initiate a grandparent visitation case in the OC, contact a family lawyer as soon as you can. Your attorney can help you figure out how to navigate the legal system, and assist you in your case. Contact the attorneys at Yanez & Associates to schedule your free initial consultation.
