It is often the case that, where there are issues between two parents over caring for a child, or even where there is just one parent who is unwilling or unable to properly care for a child, that there is also a grandparent in the picture who cares deeply about that child.
A grandparent concerned about the best interests of the child, but who has disagreements with one or both of those parents relating to care or visitation with the child, may be able to pursue custody or visitation with the child in California. Such cases can be challenging, given the fact that California law prefers that parents care for and make decisions regarding the child, but, where such intervention by the grandparent is warranted, a California judge may indeed award custody or visitation to a grandparent.
Grandparents and Custody in California Family Court
Again, California family law courts will always look first to either of the child’s biological parents (or an adoptive parent) in determining custody, whether that be sole custody to one parent or shared custody between the parents. But a grandparent may seek sole or shared custody as a “nonparent.”
In any custody proceeding, the court is going to ask what custody arrangement is in “the best interests of the child.” This analysis requires looking at a number of factors related to, among other things:
- The child’s physical, emotional, and financial needs
- The financial, physical, and mental ability of the person seeking custody to provide for those needs
- Any other persons who would be living in the home with the child
- Any history of domestic violence or drug/alcohol abuse
When a nonparent such as a grandparent is seeking custody, however, the court will need to find that: 1) not only would custody to the grandparent be in the best interests of the child; but also that 2) having the child live with his or her biological/adoptive parent(s) would actually be a “detriment” to the child.
The detriment test is not as strict as showing that the parents are “unfit” to act as parents, but it will require the grandparent to make a strong evidentiary showing to the court that living with the actual parents would be detrimental, i.e. the parent has neglected the child or will expose the child to dangerous or harmful situations.
Seeking Visitation as a Grandparent in California
Grandparents may also seek visitation in California, which is relatively easier to obtain than custody, although it can still present a challenge when the custodial parents do not want to the grandparents to visit. To win visitation, the grandparent will need to prove to the court that visitation by the grandparent will be in the best interest of the child.
There is a rebuttable presumption that, when the parents object to visitation by a grandparent, that visitation would not be in the best interest of the child. What this means is that the burden will be on the grandparent to provide evidence to the California family law court that the visitation would actually be in the best interest of the child.
Legal Guidance in Your California Custody or Visitation Matter
To schedule a consultation regarding your situation and any questions you have about child custody, visitation, and other family law matters in California, contact one of the family law attorneys at The Law Offices of Omar Gastelum and Associates, PLC today.