Grandparent rights are one of the most important family law issues. The rate of grandparents who go to courts for the sake of participation in their grandchildren’s life has been increased to a large number from 1990 to 2020. The rules and regulations for getting grandparent rights vary from state to state and most of the grandparents become too confused to choose what to do or what not to do, and this confusion leads to failure in gaining grandparent rights.
But if you are a grandparent resided in California, and have a commitment to provide your grandchildren safety, shelter, proper health, and a bright future, stay relaxed because, in this article, we will give comprehensive description grandparent rights. All these details mentioned below have been taken from California Family Law and explained in a way that is easy to read, understand and implement.
There are two main grandparent rights: grandparent rights to visitation and adoption grandparent rights or custody/guardianship rights.
Grandparents rights- Visitation
All the main information about grandparents’ right for “visitation” with their grandchildren has been listed in California Family Code 3100-3105. There is a step-by-step explanation of this section. Family Code 3101 explains that the court has full authority to order a reasonable visitation to grandparents in inappropriate situations such as dissolution, nullity or legal separation. Grandparents can adopt one of two ways for submitting the request for reasonable visitation with a child:
a) joining a guardianship proceeding that has already been initiated or
b) by submitting a petition and initiating a family law case or seeking an order in an existing action under Family Code 3021
Grandparents can file a petition for visitation if:
- A parent is deceased;
- A dissolution or other family law proceeding is pending in which child custody is already at issue;
- the parents are not married to one another, including after a marital dissolution or
- The parents are married but are living separately and apart on a permanent or indefinite basis and meet numerous other statutory criteria.
Family Code 3104 states that the court will award the grandparent right for visitation with the child if there is a pre-existing bond between the two and that is in the “best interest of the child”, and balances the child’s interest in visitation against the parents’ right over their child. It will only be implementable if parents are not in a marital relationship, including after marital dissolution. Though, Family Code 3104 points out that this rule is also implemented for married parents but the following circumstances will become the base for it:
- Their residence is separate and they apart indefinitely or permanently;
- One parent has been absent for more than 30 days and the other parent doesn’t know the whereabouts of the absent one;
- One parent joins in the petition with the grandparents;
- The child is not residing with either parent;
- The child has been adopted by a stepparent;
- One parent is incarcerated or involuntarily institutionalized.
Grandparent Rights – Adoption
The second of the most important grandparent rights is the right for adoption/custody(either temporary or permanent). Since the beginning of the twenty-first century, the number of children being raised by their adoptive parents has been increasing at a high pace.
California Family Code (8800-8823) address grandparents’ rights to adopt their grandchildren when: parents abuse or neglect children, one or both parents die, parents abandon child or parents are incarcerated.
The procedures to adopt a grandchild are slightly different in each set of circumstances, but some ins and outs of the procedure are:
- File a petition in a county authorized by Section 8609.5.
- If the child has been placed for adoption, there must be a copy of the adoptive placement agreement patched to petition.
- If a grandparent is engaged in a postadoption contact agreement with a biological parent, don’t forget to attach the agreement, signed by the participating parties, with the adoption petition.
- It is prohibited to hide or dislocate the child in or from the county where the proceeding is pending.
- Petitioners and other interested persons will have to take special permission from the court for the removal of the child.
- If one of the biological parents of the child refuses to give their consent, the child will be held in the custody of his/her birth parents until the court takes some other action.
When it comes to the issue of custody or guardianship, a grandparent in California may seek these rights under specific circumstances. Typically, this is considered when neither parent is able to care for the child due to various reasons such as substance abuse, mental illness, imprisonment, or if it would be deemed to be in the best interest of the child.
The process for obtaining guardianship by a grandparent often starts with the filing of a guardianship petition. This process is distinctly separate from that of adoption and doesn’t terminate the parental rights of the child’s birth parents.
In cases where the child’s environment with their parents is found to be detrimental to the child’s welfare, and the grandparent can provide a stable and loving home, the court may grant guardianship. The court will always prioritize the best interest of the child, including considerations of the child’s health, safety, and welfare, and the need for continuity and stability in the child’s life.
If a grandparent seeks to become a guardian to their grandchild, they would typically need to:
1. File a Petition for Guardianship.
2. Notify the parents and other close family members as required by law.
3. Undergo a background check, and sometimes a home visit and report by a court investigator or a Guardian ad Litem.
4. Attend a court hearing on the matter.
If guardianship is granted, it typically gives the grandparent rights similar to that of a parent, such as making decisions about the child’s education, healthcare, and general welfare.
It is important to note that legal procedures around grandparent rights can be complex, and laws may have changed since this writing. For this reason, it is highly recommended for grandparents to seek legal advice from an attorney who specializes in family law and has up-to-date knowledge of any changes in the laws. Legal counsel can assist with navigating the system, understanding the legal requirements and deadlines, and representing the grandparents’ interests in court.