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Transparency Our clients are always informed of their current case status at every step. We provide all clients with a simple explanation of how the law applies to their situation

Experience Our lead attorney has handled over 1,000 family law cases and hundreds of custody trials. We offer an unparalleled courtroom presence and unmatched experience working with family law.

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Grandparents Rights

Grandparents are an essential part of the family in most cases. They provide many services such as child care or babysitting for their grandchildren. Additionally, they are a source of emotional support and advice to the family and their grandchildren as well. Some grandparents provide financial support to their children and grandchildren. Typically, grandparents do not have to ask for individual rights like visitation or custody rights. However, some situations arise, forcing them to seek these rights to protect their grandchildren or just to have a relationship with them.

When certain situations arise concerning the parents of the children, the bond the children have with their grandparents must never be overlooked. The California law accords grandparents of individual rights to their grandchildren. At San Diego Divorce Attorney, we understand the importance of the bond between grandparents and grandchildren and will help you safeguard these rights.

Overview of Grandparents Rights

Typically, grandparents are not expected to demand their visitation rights when their grandchildren’s parents are still married. But, some situations can force grandparents to demand their legal rights to their grandchildren even when the parents are in a marriage. These situations include:

  • When the parents to their grandchildren live separately

  • When the parents to the grandchildren are missing and cannot be found

  • When the grandchildren’s parents have no custody over the children physically

  • When both or either parent to the grandchildren is incarcerated

  • When a step-parent has adopted their grandchild

  • When the parents to their grandchild have psychological challenges making it impossible for them to care for their child

  • The parents to the minor have alcohol, and drug abuse challenges making them unsuitable to care for the child or

  • When one parent files for visitation rights together with the grandparents over the child.

  • When one of the parents has died and the other lives with the child

  • When the parents of the child are divorced, or a divorce proceeding is ongoing

  • When the parents of the child are not married and do not live together

  • The child’s parents are still married but permanently separated.

The courts have, however, over time, demonstrated their understanding of the critical bond between grandparents and their grandchildren. Although not expected to issue visitation rights to the grandparents, they, however, preserve this bond by granting visitation rights. The court does this following the best interests of the minors.

This may mean altering the life of the child slightly while still maintaining the meaningful relationships in their lives. The court acknowledges grandchild and grandparent relationships to be among the most crucial ones for the child.

Balancing Grandparent’s Request and the Rights of the Parent

Even as grandparents petition for visitation rights, it is critical to understand that these rights don’t get automatically granted. Based on the law, the court must evaluate the petition and put the needs of the child first. Family law code, according to section 3104, expects the court to:

  • Focus on the existing bond between the child and the grandparents and

  • The advantages and disadvantages of overriding parental rights.

When there is an ongoing relationship or bond between the child and its grandparents, the court is likely to issue visitation rights. When a grandparent wants to secure their rights to visit their grandchild, they must be ready to strengthen their petition by providing evidence that shows they have a stable relationship in existence already. Some of the favorable evidence in support of this may include:

  • Providing photographs that have you and the grandchildren in it

  • Have video footage with the child

  • Have receipts from things you have done with the child or bought for them

  • Have the grandchild provide a statement

  • Demonstrate family input

  • Have a witness that testifies to your relationship with the grandchild.

It is critical to note that even as courts prefer maintaining the relationships in the child’s life, they may not be willing to limit the decision-making abilities of the child’s parent. The parent still has a fundamental right in decision making concerning the life of their child. Overriding this right is not easily granted by the court, but it considers the circumstances and family dynamics in deciding.

The judge will typically evaluate the advantages of the relationship between the child and grandparents against the consequences of overriding the parent. In all this, the court’s primary goal is to safeguard the interests of the minor. If it is in the best interest of the child to maintain a relationship with their grandparents, the court will override the parent’s decision and grant the grandparents their request.

The Role of Mediation in Asserting Grandparent’s Rights

When a dispute arises, going through mediation to resolve the family issue is sometimes better. A mediation process is more flexible and allows both parties to express themselves without unnecessary animosity. Some of the benefits of mediation is allowing all the parties involved to be in control of the outcome, reduce negative energy, and reduce emotional trauma on the children. Mediation is also a cheaper process, less time-consuming, and also less stressful.

There are licensed and approved mediators by the state of California. Most family lawyers are licensed mediators making it possible for the family to discuss the dispute with their mediating lawyers without filing a court petition. The parents of the child and the grandparents can sit, and through a mediator, a common ground will be found.

Through the licensed mediator, in most cases, an attorney, both parties present their grievances and work towards an acceptable solution. When both parties agree on the visitation rights and the terms, this is adopted and written down. Once the mediator draws the contract, it is signed by both parties, with the mediator being a witness. This becomes legally binding between both parties.

After this, grandparents are allowed to have a relationship with their grandchildren according to the terms in the contract. The parents, on the other hand, are expected to respect the agreement and the terms in it. If either party violates the terms written down in the contract, hefty fines may be charged as well as civil penalties.

Seeking Visitation Rights through the Court

Even though mediation is cheaper, faster, and less expensive, an amicable agreement may not be reached through it. Other times, the parties involved may prefer using the court to seek visitation rights to their grandchildren.

Fortunately, the law allows grandparents to petition the court and request for visitation rights. With an experienced family lawyer by your side, it will be easier to file a petition. Sometimes grandparents want to petition when there is already an ongoing case between their grandchild’s parents. This may pose some complications, but the law still allows it as a separate case.

Although no official forms exist, for this reason, many courts develop their templates or forms that are used in asking for visitation rights. Your attorney will help in getting these forms, or you can get them directly by visiting the self-help center of the court or the facilitator for family law. Generally, when grandparents want to seek visitation rights through the court, they must do the following:

 

  • Find out in case there is an open case in the family court. This is important because if a case is already open, you can file your petition under the case. A case involving your grandchildren may be a custody case when the parents are getting a divorce or any other case. If no case is open, you can petition an independent case with the help of your family lawyer. In case you do not want to have a lawyer, the court will help you through the facilitator of family law.

  • Filling out court forms is the next step when there is an existing open case. At this point, you request to have order Form FL-300. In this form, you will explain the visitation type of schedule you want and why it should be granted. Ensure to provide answers to all the questions necessary for the judge in deciding whether to grant you visitation rights or deny you. These include questions regarding the type of relationship you have with your grandchildren and why the children need to have a relationship with you. Always include anything else that will help support your case and enable a judge to rule in your favor.

  • Get your forms reviewed. This is a crucial stage because a different eye will see what you have missed and help you with it. When you have an attorney, let them review the forms for you. However, when you are not represented by a lawyer, the facilitator of family law will help you with your case. Both the attorney and a facilitator in family law will help you in ensuring the form is well filled and advice if more forms need to be filled.

  • Generate a minimum of three copies. The court deals with records. Having records is encouraged in all court proceedings. In this case, two of the copies are served to the parents, you remain with one, and the court receives the original one.

  • Filing your forms is the next important step. This you do through a court clerk. The clerk will stamp all the copies indicating they have been filed and keep the original for the court. A fee for filing is then charged, and if unable to afford it, you can request for it to be waived.

  • Obtain your mediation or court date from the clerk. In some cases, the parents to your grandchildren and yourself may have a meeting with a mediator before trial. If a solution is found through the mediation, the court trial may be dismissed. Where you do not understand, your attorney will explain it to the court clerk.

  • Serving the papers to the grandchildren’s parents is the next step. Parents of the minors must be issued a notice of the impending case. This is done by you presenting the filed court papers to them alongside the given court date or mediation date. Papers are not served directly by yourself, but by another person that must be over eighteen years. Additionally, as the papers are served to each parent, they must be accompanied by a blank order form FL-320. This is usually a blank form to facilitate a response from the parents of your grandchild. Always remember that the documents need to be served sixteen days before he said court date.

  • If your case was filed under another existing one, you could notify the responding parents through certified mail. Request a return receipt with prepaid postage as you send to the last given address of the parents or to their lawyer. Always remember the mailing will also be done by someone else that is above 18 years.

  • Filing proof that you served the papers is next. The person that served or mailed the papers must fill out a form indicating they served them. This is done by filling Form FL-330 if it was personal service and form FL-335 for mail service. A return receipt is attached to the form when the mail service was used. Once these forms are filled, they are then filed with in court.

  • After the parents to your grandchild are served, you may then have a hearing before a commissioner or a judge. As earlier mentioned, you may also be asked to attend mediation instead of the court. If an agreement is not reachable through this process, the judge makes a decision in the interest of the child. The judge is always careful to balance the rights of the child, parents, and grandparents when making their ruling.

Once the verdict by the judge is granted, he or she signs the order. The court clerk prepares a court order for signing to make it official. When a lawyer represents either side, an order is prepared by them and signed by the judge.

Some courts may ask you to generate the order for signing. In this case, you will be required to fill in a form for Findings and Order After Hearing, known as Form FL-340. Attach another document detailing the judge’s orders to it. The facilitator in family law can assist you with this form as well.

Custody Rights for Grandparents

For parents to get custody of their children is a tricky thing. This process is even more complicated for grandparents seeking to have custody of their grandchildren. However, when a grandparent is concerned about their grandchildren’s welfare, they can petition the court to gain custody of them. Through an experienced family attorney, a custody petition can be filed in court that allows the grandparents to raise their grandkids.

During the trial, however, the grandparents must demonstrate why they believe their grandchildren are better with them. For instance, you must prove that the safety, well-being, and health of the grandchildren are at risk. This may be through showing the minors have been abused or neglected by the parents.

Some of the reasons a grandparent may seek custody of their grandchildren are when:

  • Both parents are in prison

  • The parent or parents are dead

  • The parents of the minors have been physically abusing the children

  • The parents of the grandchildren often neglect their children and disappear for extended periods

  • The parents are addicted to drugs or alcohol making it impossible for them to care for their children

  • The parents of the grandchildren expose the children to dangerous situations, for instance, manufacturing meth in their home.

The reasons must be compelling enough accompanied by evidence for the court to grant custody. Typically, courts defend the rights of the parents, and unless there is a clear indication that the child is not adequately cared for by the parents, custody to the grandparents can be difficult.

When your Grandchild’s Parents want to Terminate your Right to Visitation

Sometimes the parents of your grandchild may wish to terminate your visitation rights. This they can do in court for various reasons such as:

  • You are abusive to your grandchild

  • You disregard the terms of visitation or

  • You are a terrible influence on your grandchild

These, among other reasons, might be cited by the parents to prevent you from accessing your grandchild. Fortunately, when served with the petition, the law allows you to fight against their request and retain your visitation rights. In all this, it is essential to remember that the court respects the parent’s right to decide what is best for their child. However, if the petition holds no merit, the court will not grant their request, and you will continue your relationship with the child.

A family lawyer will represent you and argue against the evidence provided by presenting evidence in support of the healthy relationship you have. Your lawyer will also present witnesses to testify to your relationship with your grandchild.

Find a Family Lawyer Near Me

As discussed in this article, many situations may call for a grandparent to seek their rights towards their grandchildren. When parents divorce or one dies, among other reasons, the parent having sole custody of the children may deny the grandparents from the other side or their parents from seeing their grandkids. This can be emotionally stressful to you and your grandchildren, forcing you to seek legal intervention for your right to visit your grandkids.

This requires hiring an experienced family lawyer familiar with the rights of a grandparent to assist you. At San Diego Divorce Attorney, we understand the complications in family life as well as what the law says regarding grandparent’s rights. Through our compassionate family attorneys, we will assist you in reconciling the differences and reclaim your visitation rights. Call us at 858-529-5150, and we will discuss your situation extensively.

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