Family law rights matters, be it guardianship, child support, or visitation have both emotional and legal impact that can change your family dynamics and affect your life. You may be required to sell your home, split the money in the bank account, or even relocate to another city. If you find yourself in this situation, you may benefit from the guidance of a family law lawyer. We invite you to contact our legal team at the San Diego Divorce Attorney for family law issues, including parental rights issues.
As far as children and parents are concerned, parents have the right to have a relationship with their children. The law ensures that both parents have an equal chance to relate with their children. California state laws were put in place so that government agencies like the court system cannot interfere with the child/parent relationship unless it is crucial to protect the minor.
Right to Visitation and Child Custody
Under the law, either you or your spouse can seek visitation or custody rights. Both parents are treated equally with equal rights. The rights remain irrespective of:
the relationship between you and your partner, and
whether you were married or not when the children were born.
When determining child custody, the judge will use the minor's best interest standard. Per this standard, both parents' involvement is essential unless there is a threat to the well-being of the minor. In other words, the judge will try to reach custody arrangements, which reduce the disruption of the minor's daily life and works towards offering the child the most supportive and positive growing environment possible.
While California courts have customarily named mothers as the custodial parent, recent rulings are seeing more mothers getting visitation and fathers receiving full custody. When deciding who receives custody, both parents are evaluated equally and fairly.
The judge reviewing your case will put the following factors into account when making child custody determination:
Custody agreement between you and your ex-spouse can come into play if the reviewing judge determines you are working towards your children's best interest, and the arrangement meets your needs. Nevertheless, the judge will still ensure the custody agreement works toward the best interest of your children, notwithstanding how peacefully you came up with the agreement.
Criminal history. If you have a history of domestic violence, sexual or physical abuse of a minor, addiction, or committed a California felony, the odds are the judge will deny you custody or permit visitation under stringent supervision on a restricted schedule.
Parenting skills. The court will need investigations from a court officer to decide every parent's suitability to take care of the children, each parent's parenting approach, and the living situation of the minors with each parent.
Stability. For instance, if you decide to take a job in another state after a marriage dissolution, moving to a new city and starting another school could affect your children's life. The judge could rule the remaining parent to stay at your family home as the best course of action for your children.
Sometimes the judge will consider the minor's preference provided the minor is mature enough to give a reasonable explanation of their choice. Please note, there isn't any given age requirement. The judge uses his/her discretion to conclude your child's maturity and the strength of their testimony in the case
Depending on your case's outcome, one parent will be the primary custodian, while the other will be named non-custodian. That means, as a primary custodian, you have custody most of the time and determines where your children live. A non-custodial parent, on the other hand, gets visitation in various capacities depending on the case's facts, including supervised visitations, unsupervised visitations, and weekend visitations.
The primary custodial parent has the entitlement to seek child support assistance. Often the non-custodial parent pays child support to the primary custodial parent. Child support covers the financial responsibilities of the children's upbringing, like school fees, food, shelter, clothing, and medical costs.
You have the right to seek child support as a custodial parent. You can also take legal action if child support is not paid.
The term "guardian" refers to any person other than the natural parent who has the legal authority to manage the affairs and care for a minor. It occurs when the parent is unable to take care of their child due to:
Military duty abroad
Profound financial challenges
Alcoholism and drug addiction
The legal guardianship has the same responsibilities for and to the minor as a parent does. The parent retains limited rights, such as reasonable visits and contacts, and the parent can request for the child's custody. The standard of return is the child's best interest.
Giving the children's custody to another person other than the biological parent is something California courts take seriously. The requesting individual should establish that the guardianship appointment is in the children's best interest, regardless of whether a relative whose affection for the minors is unquestionable is seeking guardianship.
Please note, the court will not grant you custody because you disapprove of how a parent is raising the children.
How Adoption Differs from Guardianship
As previously mentioned, a natural parent can retain parental rights and be granted visitation of the children during the guardianship period. The court supervises guardianship and can be terminated when and if the parent's condition improves. The court favors reunion of the children with their parents if the parents prove to make progress towards having a home that is ideal for the children to be raised in.
On the contrary, in adoption, the parent's parental rights and responsibilities are terminated, and the parent doesn't have visitation rights. Also, the court does not supervise adoptive families.
Because guardianship is a lawful relationship, only a judge can appoint a guardian. It can take place in either of the following:
Probate guardianship due to your petition in search of being appointed a guardian
Juvenile dependency guardianship. After children become dependents of a court, guardianship is possible depending on the children's case, the needs of the minors, and when a guardianship petition is brought. Once the children are taken from their parents, the court holds a hearing every 6 (six) months to analyze placement options.
Typically, probate guardianship is for children below eighteen years of age and is for a short duration. During this duration, you will either:
Manage the minor's estate, or
Have the minor's legal and physical custody.
Guardianship of the Person
The term "guardianship of the person'' means the court has given you the minor's legal and physical custody. You will be accountable for the minor's emotional and physical well-being. It includes offering them with:
In layman's language, everything the natural parent would lawfully and morally provide.
This type of probate guardianship is awarded when biological parents are not able to care for their children properly or can cause their babies harm. For instance, a guardian may be appointed if the children are exposed to alcohol abuse, domestic violence, or drug abuse.
Guardianship of Estate
Guardianship of estate is appointed to an individual who can manage a child's finances, property, or money until the child is eighteen years old. Often, this is the situation when the minor has inherited a significant amount of property or money.
Typically, the judge will appoint a surviving parent as guardian of the estate. If you are the guardian of the person, the court could appoint you the guardian of the minor's estate.
Are There Other Rights and Responsibilities of a Guardian?
You should get the minor child mental health or counseling services should the minor require them. However, you can't enroll the minor in a mental health facility without a court order unless the minor child agrees.
You should present a status report to the court at least once a year. You should meet with social workers or court investigators sent by the court as well as show up in court when summoned. Additionally, the court could ask you to assume additional responsibilities or impose special conditions, if required.
You are accountable for damages and harm the minor causes like causing a road accident or graffiti. You are also answerable for the intentional conduct of the child, negligent supervision, and negligent entrustment of a car.
You can give the child consent to apply for a driver's license. If your child applies for the license, you should get car insurance for them.
You allow the minor to enter into active duty with the military.
Both you and the judge should allow the minor to get married.
Historically, grandparent visitation rights were not allowed in California. However, family dynamics have changed significantly. Today non-parents and grandparents are caring for, supporting, and raising children in their family. Consequently, the law has evolved to address visitation and custody issues concerning grandparent rights. The focus is on what is in the child's best interest.
Grandparent Visitation Rights
When Can You Petition for Grandparent Visitation Rights?
You can file a visitation petition if any of the below takes place:
The child's natural parents die
When a family law case is pending in court and child custody is a dispute
The parents stay in different households
The parents are not married
If the parents aren't married, and you seek visitation right, the judge will conduct a balancing test. The balancing test determines if you have a bond with your grandchild. The information will be balanced with the parent's right to raise the child.
If the biological parents are married but live in different homes, the judge will put the following into account before granting you visitation rights:
Whether the parents support your petition for visitation
Whether their stepparent adopts the minor
Where the minor lives
The duration a parent has been away from your grandchild's life
Whether a parent is aware of their partner's whereabouts
Should both parents object your visitation order, the order will be denied. In this case, you should assert proof that convinces the court that your visitation is in the minor's best interest.
Filing for Visitation in Active Family Law Case
If a legal separation or divorce case involving your grandchildren is pending, you should join the case. It can be achieved by bringing Summons and Petition for Joinder. To bring a Petition for Joinder, you need to file the documents below:
Petition for Joinder
Notice of Motion and Declaration for Joinder (FL-371)
Filing for Grandparent Visitation Petition When There is No Active Family Law Case
To file your petition, you should complete the following:
A complaint of grandparent visitation
UCCJEA Declaration (FL-105)
Your proceeding should be brought in the county where your grandchildren have been living for the last 6(six) months. The clerk will then schedule a court hearing. After filing your paperwork, serve both parents with all copies of the filed documents.
Remember to file Proof of Service (Form FL 330) with the court before the hearing date.
Visitation Following Adoption
In San Diego, if another person apart from a grandparent or stepparent adopts a minor, visitation right with the former family automatically terminates. Adoption severs the relationship between a minor and their biological parents as well as with all the parents' relatives. However, if another grandparent or stepparent adopts the minor child, grandparent visitation is allowed.
Moreover, if the court has taken away the parent's physical custody and taken the minor to another place like a children's home, the court should determine if continued grandparent visitation rights are in the best interest of the minor. In this case, the court will not assume your visitation right is against your grandchild's best interests despite the parent's desires or views.
Getting Custody of Your Grandchildren
It is possible under the California family law to petition for your grandchild's custody. You should prove that the minor's safety, well-being, and health is endangered as a result of neglect or abuse of their parent(s). The danger could be because of the parent's alcohol abuse, drug addiction, or physical abuse. In this case, the court can terminate parental rights and award you child custody.
California is one of the states that remain stalwart in making sure women can make informed decisions concerning their bodies. The state has a history of protecting women's choice, including the explicit right to procure an abortion. Moreover, the law requires private insurance companies and Medi-Cal to cover abortion and contraception.
Birth Control and Emergency Contraception
In California, birth control is lawful for everyone. You have the right to decide about using birth control and keep it confidential. That means no person has to be aware if you are using it, and nobody should force you to use contraceptives if you do not want to.
If you have sex and do not want to become a parent, you've choices that range from IUD, pills to condoms. You purchase your contraceptive directly at a pharmacy.
If you did not use birth control or a condom broke during sex, a morning-after pill can protect you from becoming pregnant. Please note, the emergency contraception works within five days of having unprotected sex. You can purchase your emergency contraception without seeing a doctor regardless of your age.
Sexually Transmitted Infections
You are entitled to get private testing and treatment for HIV and STIs. In other words, you can be tested without getting consent from anyone provided you are above 12 years.
It is illegal for the doctor or clinic to tell anyone of your results.
Should you believe that you could be expectant, you have a constitutional right to get a confidential pregnancy test. In case you are expectant, you have the following options:
Place Your Baby on Adoption. In case you are expectant and do not want to procure an abortion or have the baby, you could place your child on adoption. If you did not make any adoption arrangement and you are almost due, don't panic. California law allows you to drop-off the newborn to a fire station or hospital within three (3) days after birth without getting into trouble or providing your name.
Procure an abortion. If you don't want to have a baby, you can have an abortion once you are six months pregnant. You do not require any person's consent. However, you need support from a person who has your interests at heart. It could be your parents, friends, or a counselor.
Become a mother. You have a right to continue going to school or working while you are expectant and after the child is born. The law prohibits schools and employers from treating you differently because you are a parent or pregnant. On top of that, you are entitled to keep the pregnancy private.
Covering Sexual Health Services
Many private insurance providers cover birth control, childbirth, prenatal care, abortion care, and maternity care. Also, they cover STI screening and testing, but the insurers don't take care of the treatment costs. Make sure you confirm with your insurer if you're covered.
Find a Competent Family Law Attorney Near Me
Family law rights issues involve child custody, visitation rights, guardianship, child support, among others. These situations involve intense emotions between the parties, making an already complicated law more challenging to navigate. That is why our family law attorneys at the San Diego Divorce Attorney are here to stand with you throughout the legal process. For more information, please contact us today at 858-529-5150.