Understanding Grandparents’ Rights After a Parent’s Death in California
When a child loses a parent, the trauma extends beyond the immediate family. For grandparents, the grief is coupled with a deep concern about their grandchild’s well-being and future.
In California, grandparents do have legal avenues to remain actively involved in their grandchild’s life, whether they’re seeking custody or simply hoping to maintain visitation. Understanding these rights can be the first step toward providing critical stability and care during an emotionally turbulent time.
What Happens with Child Custody After a Parent’s Death?
In California, when a custodial parent passes away, legal custody does not automatically transfer to the surviving grandparent, even if they have been deeply involved in the child’s life. Instead, the court will determine what arrangement is in the best interests of the child.
Under California Family Code sections 3102, 3103, or 3104, if the other parent is still alive and capable, they generally assume full custody. If both parents are deceased, or the surviving parent is unfit or unwilling to provide care, a grandparent may petition for custody or visitation rights.
Kinship Care in California
Kinship care refers to situations where a child is placed with a relative rather than entering the foster system. California encourages kinship placements whenever possible, believing it’s in the child’s best interest to remain with family. Grandparents often become the first choice for such placements, especially after the death of one or both parents.
To formalize kinship care, grandparents can:
- Petition for guardianship through probate court.
- Seek temporary custody while a longer-term arrangement is worked out.
- Request to be considered a de facto parent in dependency court (if the child is a ward of the state).
The process can be complex, and success often hinges on proving that remaining with grandparents offers emotional, physical, and psychological stability for the child.
Custody of an Orphaned Child
If both parents have died, grandparents may petition for legal custody under California Family Code §3041, which allows non-parents to gain custody if it’s demonstrated that:
- Granting custody to a non-parent is in the child’s best interest.
- The child would suffer emotional harm if placed with someone else.
The court’s primary concern is the child’s welfare. So grandparents must show they can provide a safe, stable, and nurturing environment and that their continued involvement would support the child’s mental and emotional recovery after such a significant loss.
Visitation Rights After Parental Death
Even if a grandparent does not pursue or obtain custody, they may still be eligible for visitation rights. Under California Family Code §3102, grandparents can request visitation if a parent (to whom the grandparent is related) has died.
In deciding whether to grant visitation in San Diego, the court weighs factors such as:
- The pre-existing relationship between the child and grandparent
- The potential benefit of continued contact
- Any objections by the surviving parent (if applicable)
- The child’s preferences, particularly for older children
Courts are generally inclined to preserve healthy family bonds, especially when children are grieving and require emotional continuity.
The Role of Dependency Court for Grandparents
When a child is removed from a parent’s care due to abuse, neglect, or abandonment—and the parent has passed away or is unfit—the case may proceed through dependency court. In such cases, grandparents can participate in the following ways:
- Request placement of the child in their home
- Petition for de facto parent status, granting them the ability to participate in hearings
- Offer input through a Relative Information Form (JV-285)
It’s critical for grandparents to act quickly in these situations. Courts prioritize timely placements, and delays can result in a child being permanently placed with non-relatives.
Mattis Law, A.P.C., can help grandparents intervene effectively in dependency court, ensuring their voices are heard and their rights are protected.
Building a Strong Legal Case as a Grandparent
If you’re seeking custody or visitation, a strategic legal approach can make all the difference. For grandparents to build a strong case, they should be prepared to:
- Demonstrate ongoing involvement in the child’s life
- Prove they can offer a safe and loving home
- Provide records of past caregiving responsibilities
- Gather supporting statements from teachers, therapists, or doctors
- Show that their continued presence is in the child’s best emotional interest
Having a knowledgeable and compassionate San Diego grandparents’ rights attorney can help you organize these elements into a compelling petition.
Why Choose Mattis Law, A.P.C.?
Amelia J. Mattis has dedicated her career to guiding families through some of the most sensitive and emotionally charged issues in California family law. When it comes to cases involving grandparents’ rights, she understands how to advocate for the stability children need after tragedy strikes.
With a reputation for compassion, empathy, and hard work, attorney Amelia has earned recognition as one of California’s Top 10 Family Law Attorneys and one of the 10 Best Female Attorneys in the state. She’s also been honored as a Super Lawyers Rising Star and a TOP 40 UNDER 40 lawyer by the American Academy of Attorneys.
Speak with a San Diego Grandparents’ Rights Attorney Today
At Mattis Law, A.P.C., we’ve worked with numerous grandparents to build compelling custody cases grounded in compassion and the best interests of the child. Whether you’re seeking to formalize your caregiving role or are facing resistance from other relatives or state agencies, we’re here to help.
Mattis Law, A.P.C., offers a free consultation to help you understand your options. Our practice is based in San Diego, and we proudly serve families across Southern California. Call us today at (858) 328-4400 to schedule your free consultation.