Grandparents' Rights Explained

In some situations, grandparents have legal rights to their grandchildren in terms of a right to visit with their grandchildren, take legal and/or physical custody of their grandchildren, adopt their grandchildren, and/or become a legal guardian(s) of their grandchildren.

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Grandparents also have a right, in some situations, to have their grandchildren financially supported by their grandchild’s legal parent while their grandchild is in their physical custody. However, grandparents' rights are not absolute.

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Note: This article briefly discusses a grandparent's rights to custody, adoption, and guardianship of a grandchild, but the focus of this article concerns grandparents' rights to grandchild visitation and rights to financial support of a grandchild. For further information on related issues, please contact our divorce and family law attorneys for a free case evaluation.

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How to Establish Grandparents' Rights: For a grandparent to have rights to visitation or support of a grandchild the child’s grandparent must first prove to the family law court judge the following:

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• There is a preexisting relationship between the grandparent and grandchild such that has engendered bonds between the grandparent and grandchild, and

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• It is in the best interest of the child to visit with his or her grandparent, as that interest is balanced against the legal rights of the child’s parent(s).

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Thus, if there is no preexisting relationship between the grandparent and the grandchild, or, if it is not in the best interest of the grandchild to visit with his or her grandparent(s), then the family law court judge may deny grandparent(s) the right to visit with a grandchild.

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Also, if the grandchild's parents are married, the grandparent(s) seeking grandchild visitation must also prove that at least one of the following:

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• The child’s parents are not living together

• The child parents’ whereabouts are unknown for at least a month

• One of the parents joins the grandparents' petition

• The child does not live with either parent, or

• The child has been adopted by a stepparent

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Note: If a grandparent has visitation rights established by the family law court, and the circumstances subsequently change so that none of the above required factors applies, then either of the child’s parents may request that the grandparents’ rights to child visitation by discontinued.

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Note: Grandparents rights to either grandchild visitation, or financial support of a grandchild, may not be established, over objection, if the grandchild has been adopted by a person who is not related, by marriage or otherwise, to the biological mother or father. In other words, there must remain some family relationship, by blood, between the grandparent seeking grandparents rights, and at least one of the child's legal parents.

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Also, before a grandmother or grandfather, or both, may be heard in family court, the court will require all the parties to attend family court mediation. If the parent, or parents, do not have a good relationship with the grandmother or grandfather, or both, then family court mediation can be handled in separate sessions so as to avoid any negative conflict between the parties.

 

Mediation: Family court mediation is an attempt to resolve the differences, if any, between a child’s grandparent and the child’s legal parent(s) or legal guardian(s), before those parties are heard in family law court.

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Furthermore, establishing grandparents' rights is the proper vehicle for maintaining visitation with grandchildren where one of the child’s legal parents objects to his or her child’s visitation with a grandparent, but it is not the best option for grandparents who seek legal and/or physical custody of a grandchild. When the child’ legal mother or legal father, or both, are dangerous to their child or children, it is usually better for the grandparents to obtain child custody or a legal guardianship over the grandchild.

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Finally, the grandparent must also prove to the Court that visitation their grandchild is generally being denied by the grandchild’s parent(s) or legal guardian(s). In other words, if a grandparent typically visits with his or her grandchild a few times a year without objection by the parents, then the grandparent(s) will be denied extra visitation by the court.

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Note: The purpose of establishing grandparents’ rights is to maintain, as best as possible, the bond between the grandparent and a grandchild. Therefore, if the normal visitation between the grandparent and grandchild consists of very few visits, then that is the limit of the bond that has been established between grandparent and grandchild and the family law judge will not likely increase that visitation time. However, if a parent reduces the number of grandchild visits, or denies grandchild visitation to a grandparent altogether, then a grandparent may request that the family law judge maintain the level of visits previously enjoyed by the grandparents.

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Grandparents Rights v. Custody of Grandchildren Rights

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When we speak of grandparents' rights, we are usually talking about the right to visit a grandchild, or the right to receive child support for a grandchild from the child's parent(s). The right to visit with grandchildren does not include the right to make legal decisions for them. If a grandparent is seeking to have the legal right to make legal decisions for a grandchild then the grandparent may request an order for custody of the grandchild.

With custody rights, the grandparent will have the right, either solely, or jointly with the parent(s) of the child, to make legal decisions on health care, schooling, religious activities, extra-curricular activities, and more.

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Note: It is generally more difficult to establish legal custody of a grandchild then to establish grandparents' rights to visitation and financial support.

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Grandparents' Rights v. Adoption of Grandchildren

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As stated, grandparents rights to visitation or support does not give the grandparent the right to legal custody of the grandchild. Child custody may sometimes be established for grandparents, but that custody is often shared with the child’s parent(s). If the grandparent seeks to terminate the parents' rights, then an adoption of a grandchild by a grandparent may be requested.

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Note: An adoption of a child usually leads to the termination of the child’s parents' legal rights and responsibilities related to a child. An adoption of a grandchild by a grandparent gives the grandparent all the legal rights to a grandchild that the child’s parent would otherwise have enjoyed. Adoptions can be complex in terms of legal procedure, and only a qualified adoption and family law attorney should handle these types of cases. Sometimes, a parent may permit a grandparent's adoption of the parent's child; in these cases, a grandparent's adoption of his or her grandchild is less complicated.

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Grandparents' Rights v. Guardianship Rights

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Again, establishing grandparents’ rights to visitation or financial support of a grandchild will not give the grandparent(s) any legal rights other than the right to visit with a grandchild, or to have the grandchild financially supported while in the physical custody of the grandparent. For this reason, a request for legal guardianship of the grandchild is sometimes preferred. A guardianship is a legal relationship between a minor child and a guardian that gives the guardian certain rights and obligations regarding the child.

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Note: A guardianship does not sever the legal relationship that exists between a child and his or her biological parent(s). Instead, the legal relationship between the child’s parent(s) and the child’s legal guardian (grandparent or otherwise) co-exists in a way that is similar to joint legal custody between two parents.

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Also, guardianship, including grandparent/grandchild guardianship, may be temporary or permanent. Additional, guardianship may be used for specific purposes such as to manage a child's financial affairs, or to ensure that the child, who is subject to the guardianship, attends school. For more information, see Guardianship.

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How to File (Petition) for Grandparents Rights

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To establish grandparents’ rights to visitation or financial support of a grandchild, the petitioner (grandparent) must fill out the proper family law forms and legal documents. Depending on the circumstances, those forms and legal documents can include any or all of the following: FL 100, 105, 300, 311, 341, UCCJEA, Assignment Sheet (usually a local court form), CII criminal background sheet (usually a local court form), Joinder Pleadings, and more. See common examples at right side of this page.

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The law and procedure for establishing grandparents' rights can be difficult to navigate and it is always best to use a family law attorney who is experienced with establishing grandparents' rights.

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For more information, contact our experienced divorce and family law attorneys without delay. Our family law firm has successfully represented hundreds of families in the Inland Empire. Our experience includes representation of grandparents seeking to establish visitation and support of their grandchildren, as well as representation of mothers and fathers seeking to sever grandparents' rights. We are among the largest family law firms in the San Bernardino and Riverside County area. Our consultations are provided at no cost six days a week (Mon – Sat). Call today! 

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909-307-2645

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