San Diego Grandparent Rights Attorneys
Grandparents often share a special bond with their grandchildren. However, there are times when this bond is hard to maintain because of family issues. A death in the family, a strained relationship, or moving away can take that bond away from grandparents.
California provides help to grandparents who find themselves cut out of the grandchildren's lives. If you're a grandparent who needs to establish visitation rights to see your grandchild, contact Mattis Law, A.P.C.
"We, like many people, are not familiar with navigating the court system, the law and our rights as a parent and grandparents...They have put our family at ease during this difficult time."
- Jeanine from Google
Grandparents DO NOT automatically have visitation rights with their grandchildren.
The law assumes that a parent's wish to keep the child away from a grandparent is legitimate. The grandparent must show that such visitation would benefit the child. Moreover, the grandparent must prove that they have an established “engendered bond” or continuous relationship beneficial with the child. If the grandparent and child are estranged, it is virtually impossible to be granted visitation.
Grandparents can petition for child visitation rights in the following circumstances:
- Parents are separated
- Parent's location is unknown
- Child doesn't live with either parent
- Child was adopted by a stepparent
In general, grandparents CANNOT file for child visitation rights if the parents are married. If one parent has lost legal rights to the child as a result of stepparent adoption, California grandparents still have visitation rights, but they need to petition for visitation.
There are also times when a Grandparent may wish to fight for custodial rights if parents are incapable of caring for their children, are incarcerated, or have passed away without leaving behind a custody plan.
No matter your situation, a San Diego family law attorney at Mattis Law, A.P.C. can help.
To begin filing for visitation in a San Diego County Court, you will need to first determine if there is already an open family law case being considered by the court, such as a divorce or change in custody rights. If there is already an open case, you may include your petition for visitation in that case. If not, you will need to open your own, separate case.
California courts do not have a specific form for filing for grandparent visitation, but there are Family Law Facilitator (FLF) offices in San Diego that can help you in preparing a case. They cannot represent you in court, however, so it is best to speak to a San Diego family law attorney to prepare your case.
When preparing these forms, you will need to include a planned schedule for visitation and why you are requested visitation. A California court may grant a Grandparent visitation rights if:
- The grandparent demonstrates that their bond with the child is in the child’s best interests; AND
- Visitation does not violate the parents’ ability to make decisions about their child.
Once these forms have been prepared, your attorney or an FLF office can review the documents. You will also need to make four copies: one to file with the county clerk, one for your records, and two for the child’s parents. All of these forms will need to be presented to the San Diego county clerk and must be marked “FILED” to be valid. After filing the petition, you will be assigned a court date to state your case before a family law judge. In some cases, the courts may schedule a mediator date for you to discuss the matter with the child’s parents and a mediator.
Prior to your court date, you will need to serve each parent with a copy of your petition, as well as a Responsive Declaration to Request for Order (Form FL-320) and any other additional forms that the judge may request. This form will allow both parents to consent or dispute the petition. Your attorney can help facilitate the serving of these forms, but generally they must be served by an individual 18-years of age or older and CANNOT be served by you.
In addition, you will also need the individual who served the forms to fill out at Proofs of Service that demonstrates that you did serve each parent with the petition. You should also have this form reviewed by your attorney to ensure that it was filled out correctly and all necessary information is included.
Finally, you will attend a court hearing with a family law judge to determine whether you will receive visitation or not. Your attorney should attend as well. As mentioned early, you may be required to attend a mediation to discuss the terms of visitation with the child’s parents.
Custody rights for grandparents are significantly more complicated than petitioning for visitation, though it is possible.
Under California Code 3041, non-parents such as grandparents can be granted guardianship of children if the courts find that it is in the child's best interest. For example, the courts could grant guardianship for reasons that include: parents dealing with physical or mental health problems, parents divorcing or dealing with hardships, parents being incarcerated, or otherwise unavailable or the children being neglected or abused. Parents, however, still obtain the following rights:
- Parents still have rights to make decisions about what's best for their children
- Parents have visitation and contact rights
- Guardianship can end and grandchildren returned to parents if the court decides parents are capable of raising kids
- Guardians are supervised and have to check in with the court
Other Types of Custody
Legal Custody - Refers to the full control and ability to make decisions about the child’s health and wellbeing. This includes decisions such as medical treatment, school enrollment, etc.
Temporary Custody - This solution exists for families that may be experiencing temporary hardships, such as prison time or rehabilitation programs. Though the grandparents are granted temporary authority over the grandchildren, the parents are still the legal guardians and maintain all the legal rights and overall decision-making.
Physical Custody - This term refers to where the child is physically placed to live. This can sometimes be a temporary situation.
Joint Custody - When two or more guardians share the decision marking regarding the child’s health and wellbeing.
Sole Custody - A singular legal guardian has total legal and physical custody of the child.
Adoption - Adoption is a more permanent remedy to a situation that may be potentially dangerous or harmful to a child. A court may see it fit to place the child in the grandparent’s custody if the parent(s) is serving an extended or long-term jail sentence, the parent is dealing with mental health problems including substance abuse, the children are being neglected or abused, or if the parents are unable to take care of their child due to unemployment or incapacitation. When the grandparent adopts the child:
- Parents’ rights to make decisions about their children are ended
- Parents have no rights to visitation or contact
- Adoption parents aren't under court supervision
To apply for custody, San Diego courts must first evaluate the relationship between the parent and the child. If they find that the parent is unfit to raise their child, the courts may determine that the child be fostered with a family member, such as a Grandparent, instead of the parents. At this point, the courts will review your relationship with your grandchild and determine if it is in the child’s best interests.
Child support payments are only given to the grandparent after custody or guardianship is given to the grandparent. This is usually granted when the custody claim is filed, and the court arranges guardianship. Child support payments are granted on behalf of the child and based on the parent's income.
In joint custody cases, courts can favor the party with a higher income and rule for the child support payments to come from them.
After you file a petition for child support, the court will determine how much, if at all, you will receive in aid. The Department of Child support (DCSS) and the Local Child Support Agency will mandate the collecting and enforcement of payments. However, most child support payments are made through garnished wages in California.
You can increase your child support payment by speaking to your lawyer and filing a modification.
What if I am the primary caretaker and my child's parent takes them away? Do I have visitation rights?
There is nothing more important than a child’s safety and wellbeing. As a grandparent, you play an essential role in the family. Therefore, it is vital to be emotionally responsible during sensitive times such as a divorce, untimely passing, loss of employment, mental health crisis, substance abuse problem, or any other hardship that could negatively affect your family. In every situation, you must think of the child first. Talk to a lawyer and take the steps to legally protect a child if you feel like they are being harmed.
Collecting child custody may be a difficult decision but a reasonable choice as a grandparent. If you elect to take that route, prepare yourself properly to have a solid case as the state of California takes child custody seriously. Each case is different and you need to talk to your lawyer about the evidence you will need before you choose what you present in court.
Mattis Law, A.P.C. fights to protect the rights of grandparents trying to keep a relationship with their grandchildren (including through third-party visitation). With one call to our office, we can get the facts of your case and determine what your next steps should be.
In these situations, we make sure cases progresses quickly. We can file for immediate visitation and get your relationship with your grandchildren back where it should be. Navigating the legal process is overwhelming for many grandparents, but help is available.
Don't risk the well-being of your grandchild to a less experienced attorney. Contact Mattis Law, A.P.C. today at (858) 328-4400 to schedule your initial consultation.
- What You Should Know About Grandparents’ Rights in California
- Visitation Rights of Grandparents in California