Child Custody and Grandparents: What Rights do Grandparents Have?

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Chances are, if you’re a grandparent, your adult child has left his or her kid with you for the afternoon or the weekend when they need a break or schedules become hectic.  Having the grandkids around is a joy, and getting the chance to see them grow up is a privilege.  But, when something goes wrong within the family and grandparents suddenly see much less of their grandchild, do grandparents have a right to child custody or visitation?

The rising divorce rate has changed the traditional relationship between many grandparents and their grandchildren.  A relationship that may have once consisted of bi-weekly or monthly visits can turn in to a relationship in which the grandparents are relied upon to care for children more often after a divorce. However, the opposite can also be true: after a split, grandparents may see less and less of their grandchildren, especially if the primary custodial parent isn’t their own child.

This is a perfect example of how a divorce really can affect the whole family.  In many cases, after a divorce, grandparents have petitioned the court to obtain a regular visitation schedule with their grandchildren or even custody, if necessary.  If you’ve found yourself in a family situation similar to this, it is important to know the basic rights of grandparents in family law.

Grandparent rights vary from state to state.  If the divorce goes sour, and neither parent is able or fit to care for the child (or children) properly, grandparents can request custody of their grandkids and take on their care full-time.  You can read more about the California court’s process for granting guardianship to grandparents on the California Courts website.  This process takes place outside of the family law courts.

Visitation, on the other hand, deals with grandparents’ desire to have reasonable visitation with grandchildren after a divorce.  Under California law, the court determines whether grandparents receive visitation with grandchildren.  Several

factors are considered for the court’s decision:

First, if both parents oppose the grandparents having visits with the children, it will be almost impossible to overcome their joint opposition

Second, the court must find that there is a pre-existing relationship between the grandparents and grandchildren that has resulted in a bond.  This means that, should the relationship between grandparent and grandchild continue, it would be in the best interest of the child, and a continuation of his or her health and happiness.

Third, the court attempts to balance the best interest of the child in regard to his or her grandparents with the rights of the parents to make decisions about their own child — a right that is guaranteed under the Constitution.

For many families, going through the probate courts or the family law courts to determine whether guardianship or visitation to the grandparents usually isn’t the most desirable choice.  Another, and often more peaceful, option is private mediation between parents and grandparents during a divorce.  In the mediation, all parties can discuss their concerns and needs openly.  This may be the best option to reach an agreement that is truly within the best interest of your grandchildren, while preserving a relationship with both the grandchildren and the parents.

When it comes to child custody and visitation, the main concern is and should be the well-being of the child involved.  Having the right role models and caregivers is vital to a child’s life.   

If you have questions or concerns regarding grandparents’ rights in California, don’t hesitate to contact an experienced California family law attorney.

Photo Credit: harbortrees via Compfight cc

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About Julie Clark

Julie M. Clark graduated from the University of the Pacific’s McGeorge School of Law. She has been practicing law in Riverside County since February of 1992. Julie Clark's Google+ Profile

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