If grandparents are worried that circumstances will prevent them from seeing their grandchildren, in some states, they can contact the court to exercise grandparents rights. Depending on the situation, they may be able to apply for visitation rights or even custody if the parents die or have their parental rights terminated. Each state has different laws regarding grandparents rights. In this article, we will discuss California grandparents rights.
California Grandparents Rights
In California, grandparents rights might allow a grandparent to have visitation rights or custody of their grandchild. This is only permitted in certain circumstances because California law prioritizes the rights of the parent to raise their child as they see fit. In many cases, the grandparent must have an existing positive relationship with the child in order to claim any grandparents rights.
Grandparents Rights to Custody
In order to file for custody of a grandchild, the following conditions must have been met:
- Both parents are dead or have had their parental rights terminated (or one is dead and one has had their parental rights terminated)
- The grandparents are deemed fit to look after the child and have the means to
While information about this is usually included in grandparents rights, the process is called guardianship in California. If you are petitioning for grandparents rights to custody, you should speak to an attorney about the guardianship process.
Grandparents Rights to Visitation
Most grandparents rights cases are to do with visitation because the child’s parents have cut off the grandparents or because one parent has died and the surviving parent has ceased contact with the deceased’s family.
In order for grandparents to petition for grandparents rights in California, one of the following circumstances must have occurred:
- The child’s parents are separated, divorced, or in the process of either
- The child was born to unmarried parents
- One of the parents has taken off and is nowhere to be found
- The grandchild was adopted by a stepparent
- The parents are not officially separated but living apart
- The child lives with someone other than their parent
- One of the parents joins the petition for grandparents rights
These circumstances are necessary for grandparents rights and if the court grants grandparents rights and years later these circumstances change, then the parents can ask the court to terminate the grandparents rights. It is also important to note that adoption will not automatically terminate grandparents rights, but the adoptive parents can request grandparents rights be terminated if they wish.
Even if one of the circumstances above exists, the court will not automatically grant grandparents rights. In all family court matters, the court prioritizes what is best for the child. Therefore, unless there is a prior relationship with the grandparents, the wishes of the parent will generally be considered. This is because the court sees it is in the best interests for the child to have a positive relationship with their parent, and forcing the parent and their child to have contact with grandparents may put a strain on the parent-child relationship.
If both parents agree that the grandparents should not have contact with the child and oppose the grandparents rights, especially if they are living together, then the court will believe there is a good reason for that decision. The only way to assert grandparents rights in that situation is to claim and prove that the parents are unfit parents.
In order to petition for grandparents rights in California, the grandparents must have a relationship with the child prior to their petition. It is not possible to petition for grandparents rights if you have never met your grandchild or if you have only met them a few times. During the grandparents rights case, you will need to present evidence of your relationship to the child.
Can the Parents Stop Me From Seeing My Grandchild?
Yes, parental rights are seen as more important than grandparents rights in California. Parents have the right to raise their child as they see fit and to remove people from their child’s life if they believe it is necessary. Parental rights are protected by the US Constitution and Troxel v. Granville (2000) made many states revise their grandparents rights laws to give additional weight to parental decisions. Since 2000, it is unlikely that any state would grant grandparents rights if both parents object to the petition.
Parents can set any kind of restriction they wish, be it no contact with grandparents or brief and supervised visits with grandparents.
Grandparents Rights Petition
If you are a parent of a child and their grandparents are pushing back on your decision to reduce or cut contact, or they are threatening to petition for grandparents rights, seek legal counsel. An attorney can advise you of your rights and if there is scope for the grandparents to claim grandparents rights for visitation or not. They will help you collect all the evidence you need and advise you in communicating with the grandparents in a way that will not hurt your case.
If you are a grandparent who has had their visitation with their grandchild reduced or cut and you want to learn more about grandparents rights, you should also speak to an attorney. The lawyer will be able to explain grandparents rights and listen to your case to see if they apply. Even if you cannot petition for grandparents rights in your circumstances, they may be able to point you towards mediation resources or counseling sessions to allow you and the parents of your grandchild to discuss the situation.
How Do I Petition For Grandparents Rights?
If you have spoken to an attorney or looked into the law and believe you have a case, then this is the process for petitioning for grandparents rights. A lawyer is advised when petitioning for grandparents rights, but it is not necessary. Most family courts have plenty of legal resources available and family law facilitators available to check over forms and answer questions. That being said, if you can afford an attorney, it will make the process go efficiently.
The laws about grandparents rights are in California Family Code sections 3100-3105. Read the law before you act so you can understand your rights and what remedies the law may provide. You can find the grandparents rights law at the law library, or you can find the text online by searching for those particular sections.
Be prepared for the court to ask you to try and settle the dispute before setting a trial. Most family court cases require the parties to attempt mediation to see if the case can be resolved without the court’s help. The court will provide details of mediation services. The mediator will facilitate a discussion and try to keep both parties on topic and the discussion productive. Their recommendations are not legally binding, but it may help you to understand the other party’s point of view and find a satisfactory resolution.
The Steps to a Grandparents Rights Petition
Step one: Figure out if there is a case already in family court
If there is already a case in family court regarding the parents or grandchild (like a divorce case, domestic violence case, or child support case) then the grandparents rights petition must be filed under that open case. The court clerk will be able to help you determine if a case is already open or if you need to start a case.
Step two: Fill out the forms
There are no specific forms for grandparents rights, but you can file a request for visitation form, which is the same form parents use for child custody cases. You will need to fill out the following forms at least:
- Form FL 300 Request for Order
- Form FL 311 Child Custody and Visitation Application
- Form MC 031 Declaration
If you have hired a lawyer, the lawyer will fill out these forms on your behalf to ensure your grandparents rights application is accurate and complete. If you are not hiring an attorney, you can ask the self-help center or the family law facilitator for resources or help filling out these forms. Some counties have additional grandparents rights forms, so ask if you have all the forms you need.
When filling out these forms, you need to provide all the information the judge needs to make a ruling. Provide the following information:
- What visitation schedule you are requesting
- Information about your relationship with your grandchild (how often they used to see you and if they have had extended stays with you in the past)
- Why you believe it is in the best interest of the child to keep visitation with you
Avoid talking about the parents; you should focus on your relationship with the grandchild. If you use harsh language when talking about the parents, the judge may believe you will affect the relationship between the child and their parents.
Step three: Ask someone to review your forms
If you are not seeking the help of an attorney, then ask someone to review your forms before you file them with the court clerk. If you have hired a lawyer, then skip this step.
The family law facilitator will be able to review your forms and make sure they are complete. There may also be someone at the court’s self-help center who can review your forms. It is important to note that they will be looking to make sure you haven’t missed any sections. They may look for glaring errors, but they will not go through your forms and make sure you have written a strong case for grandparents rights.
Step four: Make copies of your forms
You will need to make at least 3 copies of the forms (sometimes more, depending on the circumstances). The original forms will be filed with the court clerk, so the copies are for:
- A copy for your records
- A copy for one parent of the child
- A copy for the second parent of the child
If someone else currently has custody of the child, then you will need additional copies to present to them.
Step five: File your forms
The next step in your grandparents rights petition is to file your forms with the court clerk. Take the original forms and the copies with you. The court clerk will put a stamp on all of the copies to prove that you filed the forms.
You will also need to pay a filing fee at this point. The filing fee is usually small, but it differs in each county; visit the court’s website to find out the fee. If you are low income, you may be able to get the filing fee waived. Ask the court for a filing fee waiver form when you pick up the other forms.
After filing the forms and stamping the original, the court clerk will set a court date. Write this date down as it is important you turn up to the court date. In some courts, the court clerk will also set mediation. Otherwise, they will provide you with resources to seek mediation yourself. It is advised that you try mediation prior to the trial. It shows that you made effort to resolve the issue before seeking grandparents rights.
Step six: Serve papers
The next step in your grandparents rights petition is called Service of Process. It is a formal procedure for serving notice of a lawsuit to the other party. You need to serve both parents through a specific process.
The person who serves the papers must be over the age of 18. It cannot be you or anyone else named in the case. You can ask an acquaintance to serve the papers (make sure they know the process) or hire a professional service to do so. It is vital that you serve the papers correctly; otherwise, your claim for grandparents rights may be dismissed or the case delayed.
You need to serve a stamped copy of all the forms you filed to the parents of your grandchild at least 16 days before trial.
Step seven: File the proof of service
The person serving the papers must fill out Form FL 3030 Proof of Service Form which you then file with the court clerk. The court clerk will give you a copy which you should keep with your copies of the forms you filed. You need to bring these forms and the proof of service to the trial with you.
Grandparents Rights Court Hearing
At the hearing, the judge will listen to both parties and make a decision based on the best interests of the child. Their decision is legally binding, so if the judge grants you grandparents rights, the parents must stick to the visitation schedule. If the judge does not grant grandparents rights, then you must respect the wishes of the parents.
You need to show up to the grandparents rights court date, or you risk your case being dismissed or decided without your input.