There are many identified benefits for children who have an active relationship with a grandparent, and many families feel very strongly about this special type of connection. After a divorce or separation, it is common for grandparents to request visits or even custody with their grandchildren. Sometimes parents become ill or otherwise incapacitated, requiring the grandparents to step in and take over the role of primary caregiver. Whatever the case may be, grandparents who wish to gain custody of or visitation with their grandchildren have a true legal battle ahead of them.
Generally, in a custody dispute between the parents, the child’s best interest is the paramount consideration steering the court’s decision. An additional factor applies when the court is considering a custody order in favor of a nonparent such as a grandparent. Before making an order granting custody to a grandparent over a parent’s objection, the court must make the following two findings: 1) granting custody to a parent would be detrimental to the child; and 2) granting custody to the grandparent is required to serve the child’s best interest.
Proving Detriment to the Child
The courts in California have provided few guidelines on whether parental custody would be “detrimental” to a child. This has left courts with broad flexibility to make the ultimate decision based on the specific facts in light of the all of the evidence before the court. A finding of detriment by the court must be supported by evidence showing parental custody would actually harm the child.
A finding of detriment to the child does not require any finding of parental unfitness. For example, a parent may be fit to care for his or her child, however, moving a child from the grandparent’s consistent, familiar and constant care to the parent’s care may still be detrimental to the child, and therefore a sufficient detriment finding by the court.
Best Interest of the Child
In making the best interest determination, the court can consider any relevant factors, however, among all the relevant factors, trial courts must consider the following: the child’s health, safety and welfare; any history of abuse by one parent or any other person seeking custody and the nature of such abuse; history of drug or alcohol abuse; the amount of contact with both parents with a preference of frequent and continuing contact; stability and continuity of the proposed environment; and the ability to avoid the separation of siblings.
Because the United States Supreme Court has held that parents have a fundamental liberty interest in the care, custody and control of their children, a parent who contests a grandparent’s custody must be given a full evidentiary hearing on these matters of detriment and best interest of the child.
Grandparent Visitation
California Family Code allows the court discretion to grant reasonable visitation rights to a grandparent who has an interest in the welfare of his or her grandchild. This discretion, however, is outweighed by the custodial parent’s fundamental right to make decisions concerning the care, custody and control of their children. Therefore, a court cannot use its simple discretion to grant a grandparent visitation rights over a parent’s objection, even if the court determines such visitation may serve the child’s best interest. This is because the court will presume that a fit parent with custody will make sound decisions as to with whom their children may visit.
That being said, a parents’ right to make decisions concerning their children’s care, custody and control does not necessarily preclude a court from granting the grandparent visitation over the parent’s objection. In this situation, the same two-pronged test used above for custody is also used by the court when a parent objects to grandparent visitation.
The Process
A grandparent who wants to ask the court to order visitation with or custody of a grandchild can file a petition in court. If there is already a family law case filed between the child’s parents (a divorce, a parentage case, a child support case, or a domestic violence restraining order), then a grandparent may be able to ask for visitation under one of those existing cases. If there is not already an open case, the grandparent may have to file a brand new petition in court.
If you are a parent or grandparent that would like to know more about your custody and visitation rights, contact Cage & Miles, LLP and an attorney can review your case today.
