| 
Grandparent's Rights
Originally, Family Code Sections 3100-3104 governed the rights of grandparents.
Grandparents were to be awarded visitation under certain circumstances such is if a parent is deceased, or if the parties are separated or divorced and if the court determines that visitation by the grandparent is in the best interest of the child. There also existed a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the child's parents agree that the grandparent should not be granted visitation rights. Visitation rights may not be ordered under this section if that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding. The Court must also:
(1) Find that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child; and
(2) Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.
After Family Code Section 3100 - 3104 were enacted, case law has almost completely eliminated the relevance of those laws. The United States Supreme Court, in the landmark Troxel matter, ruled that the State of Washington law permitting grandparental visitation was unconstitutional, in that it interfered with the parent/child relationship. Even thought the United States Supreme Court was specifically NOT striking the California statute, and even though they were clear in stating that the California statute provided more protections to parents than the Washington statute, our own California appellate courts ruled that the California grandparental visitation statute, is similarly unconstitutional in the Ho case.
As it now stands, the only visitation granted to grandparents that I see in my private law practice is visitation that is either voluntarily granted without court order, or is negotiated as an agreement when the grandparents are suing for full physical custody.
GRANDPARENTAL CUSTODY:
Nothing in the law about grandparental visitation should confuse the reader about the issue of grandparental custody. In California, grandparents are lumped into the global category of "nonparents." To get custody of a child in family court through joinder, or in probate court through guardianship. nonparents have the burden of proving, be clear and convincing evidence, that it would be detrimental to the child to be placed in the custody of any of the legal parents.
Functionally, this means that grandparents can expect to get custody of children where they already have a good relationship with the kids and the parents are entirely unfit to care for them. Good examples of this include drug addictions, child abuse, or abandonment by the parents. Situations involving parents who are performing their duties in a manner less than ideal, but adhering to a bare minimum level of child care, typically keep their kids. It's a legal threshold that the judge must determine, and it's made on a case by case basis.
|
|
about us