Recent Posts in Visitation Rights Upon Death of Parent Category
| November 16, 2011 |
| 2nd Appellate District Severely Limits GRANDPARENT VISITATION Under Family Code Section 3102 |
| Posted By Thurman Arnold, CFLS |
 |
Rich v. Thatcher (2011) 200 Cal.App.4th 1176
In what reads to me to be a myopic opinion, Justice Yegan of Division Six of the Second Appellate District has declared that biological grandparents have a burden to prove, by clear and convincing evidence, that denying them visitation pursuant to
Family Code section 3102 would be detrimental to a child before they can hope to win access to their children's children, when their own child dies. in the face of a "fit" parent's objection. Attaching a burden of proof by "clear and convincing" evidence is usually the kiss of death to any litigant who has that burden.
The appellate decision appears to combine a species of "bad facts make bad law" with a reluctance to discuss the underlying facts that were determined by the Ventura trial court to such an extent that we are left guessing (but possibly not) where the grandmother went wrong, since clearly she made an extremely bad impression on both courts. Hence, my critical feeling towards the decision may be due to sensing that some important information is being withheld from "we the readers" that deserved this draconian outcome, and also from a sense that both the trial court and the appellate are being reactive to undisclosed facts, and that as a consequence a brand new rule has been established in California that will impact many grandparents who are innocent of whatever transgression Ms. Rich may have committed.
And, more important from my perspective, this decision reflects a collision between what the mental health and family sciences believe about taking a generational and cooperative approach to parenting. At this level of the case apparently nobody weighed on behalf of either grandparents specifically, or the family sciences generally - no amicus curie briefs seem to have been sought. I really hope that this decision gets appealed to the California Supreme Court so that we can begin to look at the very important role that grandparents potentially play within families. Unfortunately, grandparents don't seem to have much of an organizational voice. It seems as if the AARP ought to be interested in these issues given their constitutency.
The decision tells us that Carol Rich is the grandmother and that Rochelle Thatcher is the surviving parent ("Thatcher" is a big name in Ventura, but I don't know if there is any relation). Carol's son and Rochelle never married, but they produced a son together in December, 2006. The father died in 2010 of a drug overdose and the decision tells us cryptically that he "left two suicide notes." Grandmother and mother did not "get along", and grandmother apparently accused mother of having something to do with her son's death. "Their hostility was open and clear."
All of this suggests that grandmother had a very hard time accepting her son's death, and that she felt that the mother was in some way responsible. If so, grandmother's position may have reasonably led a trial court to conclude that she would be a destabilizing and even poisonous influence on the minor, but if that is how the justices felt it would be nice if they had said so. Instead they have spanked all grandparents with one flat judicial palm.
Grandmother did get a lengthy hearing in June, 2010, where a number of witnesses were called. At the conclusion the trial court "expressed 'great concern over [grandmother's] veracity.'" It further found that while grandmother had established some relationship with the child, she failed to establish a "deep and abiding relationship." Instead, grandmother's relationship was instead limited to interactions with the grandchild when grandmother was serving to supervised visits ordered in the parties' Paternity case. Hence, it sounds as if this grandmother's relationship with her grandson existed, but that it historically had not been substantial. The child was 4 1/2 at the time of trial.
The trial court imposed a clear and convincing standard on grandmother to "rebut the presumption that Mother is acting in the best interest of [grandchild] in denying visitation to Grandmother at this time or that denial of visitation would be detrimental to [grandchild]." Nonetheless, the trial court continued that in any event "it would not be in [grandchild's] best interest to interject court-ordered visitation with Grandmother, particularly in light of the longstanding animosity between Mother and Grandmother."
Hence, this ruling is another cautionary tale for grandparents - if you so ally yourself with you own child against the person with whom they chose to produce a child, it will hurt you later. Grandparents do too often tend to become allied and enmeshed in their children's lives, and this is a real problem in support cases where parents are paying for their children while those children refuse or fail to become independent and so try to stick the other party with a financial burden - something we will likely see an importance case on soon. But I digress.
Justice Yegan, who clearly does not brook fools,
strongly supports the lower trial courts when they make discretionary calls that are supported by the evidence. Quoting from his own earlier decision this year (see link above), he states in a footnote to this decision "[a]s
we indicated in
In re Marriage of Greenberg
(2011) 194 Cal.App.4th 1095) the trial court's comment on grandmother's veracity is tantamount to an "adverse factual finding." This is a poor platform upon which to predicate a successful appeal. (
Id.
, at p. 1099.)
That is the fact upon which this case really seems to turn. Justice Yegan continues in this decision:
"Grandmother contends that the trial court erred in applying the clear and convincing burden. We disagree with her and agree with the trial court's legal conclusion. We hold as follows: To overcome the presumption that a fit parent will act in the best interest of the grandchild, a grandparent has the burden of proof and must show, by clear and convincing evidence, that denial of visitation is not in the best interest of the grandchild, i.e., denial of visitation would be detrimental to the grandchild. The fair import of the word "detriment" is damage, harm, or loss. (See American Heritage Dict. (2d college ed. 1982) P. 388, col. 2.) If grandparent visitation is in the grandchild's 'best interest,' it is not 'detrimental.' If grandparent visitation is not in the grandchild's 'best interest,' it is 'detrimental.' [citations omitted].
Until today, no appellate court has expressly held that section 3102 requires clear and convincing evidence to overcome the presumption. 'There is some authority for the proposition that the same test which applies to a custody award to a nonparent should apply to a visitation award to a nonparent that is, that "judicially compelled visitation against the wishes of both parents" "must not be allowed unless it is clearly and convincingly shown that denial of visitation would be detrimental to the child." (
In re Marriage of Gayden
(1991) 229 Cal.App.3d 1510, 1517, 1520 ... [involving a motion for visitation by a biologically unrelated person under former Civil Code section 4601 (now
Fenn v. Sherriff
,
supra
, 109 Cal.App.4th at p. 1486; see also dictum in
In re Marriage of W.
,
supra
, 114 Cal.App.4th at p. 74 ['Where natural parents are unified in opposition, nonparental visitation can be ordered only if such visitation is in the best interest of the child
and
denial of visitation would be detrimental to the child'].)
'The degree of burden of proof applied in a particular situation is an expression of the degree of confidence society wishes to require of the resolution of a question of fact. (Citation).' [Citations omitted]. There is no question that a grandparent has an important interest in visiting with a grandchild. But the higher degree of the burden of proof that we adopt simply demonstrates that there is a preference in favor of the presumably correct choice of a fit sole surviving parent. Such choice is 'first.'
In formulating our holding, we are guided by and adopt the cogent analysis of Justice Chin in his concurring and dissenting opinion in
In re Marriage of Harris, supra,
34 Cal.4th at pp. 247-250; see also the concurring and dissenting opinion of Justice Brown at pages 251-253. To adequately protect a fit sole surviving parent's constitutional right to raise a child, a "mere preponderance" burden as to "best interest" is not sufficient. The "clear and convincing" burden, i.e. evidence "so clear as to leave no substantial doubt," promotes a parent's constitutionally protected "first" choice. The higher evidentiary burden preserves the constitutionality of section 3102 and insures against erroneous fact finding. (
Id.,
at p. 248.)
The clear and convincing burden is not insurmountable. We can certainly envision a case where a trial court could factually find and rule that grandparent visitation is appropriate over the objection of the fit sole surviving parent. This, however, is not such a case. The trial court did not credit grandmother's testimony.
Even if the trial court had erroneously applied too strict of a burden for grandmother, we
we would still affirm the order denying visitation based upon the trial court's alternative ruling. As indicated, we commend the trial court for its well-articulated order. First, it ruled that the "clear and convincing" burden was appropriate. This was a debatable issue which we now settle. But it was also prescient in articulating its alternate best interest ruling which is rooted in traditional family law principles. 'We may not reverse . . . simply because [in theory]
some
of the court's reasoning was faulty, so long as
any
of the stated reasons are sufficient to justify the order. [Citation.]' (
Kaldenbach v. Mutual of Omaha Life Ins. Co.
(2009) 178 Cal.App.4th 830, 844.)"
Note to reader - I've added some emphasis to this.
So, we now have a rule that is clearly intended to honor the constitutional issues addressed to some extent in the U.S. Supreme Court's Troxel decision. But the decision omits to discuss any of the legislative history of Family Code section 3102 as to whether the burden of proof that is associated with it is nearly as hard as what the decision makes it become. While "clear and convincing evidence" is not an "insurmountable burden," practically speaking any lawyer will tell you it almost is. Morever, while the decision admits that grandparents have important interests in visiting with grandchildren, it totally ignores the rights of children to know their families of origin. There is no mention that any lawyer was ever appointed for the minor in this case.
This decision should also be evaluated in light of a Fourth Appellate District decision issued less than a month ago. In Hoag v. Diedjomajor the Riverside based appellate district upheld a trial court order for visitation after a grandparent's child died. The burden of proof applied by the Court was not discussed, but was implicitly by a "preponderance of the evidence."
The outcome was the opposite than here, but in many ways it is entirely consistent with Justice Yegan's decision - and here is what is interesting for me: If a parent refuses visitation, even if they don't get along, to spite the grandparent, they lose. But if the grandparent seeks visitation after spiting the non-biological surviving parent, they lose.
And, I wonder, how can a "fit" parent (by definition) deny any access at all between their child and that child's grandparents, especially when the intergenerational parent is dead, except under the most outrageous of circumstances? Yet, having said that, I must confess that if a grandparent does behave outrageously, then their rights should be limited or nonexistent. Oy vey, possibly the record that we will never see discloses that such was the case here - but we must take it on faith, apparently, that it was. I don't see how we need to impose a burden of proof by clear and convincing evidence to ensure that bad grandparents are fenced in - I mean "fenced out".
Another question bothers me - the decision points out that there were nine other witnesses who testified at the trial beyond the grandmother in this case. Did these include the maternal grandparents, who possibly were more favorably received? So often these types of litigation wars can only be funded by older people who have accumulated some wealth. Often these family battles include or are really between parents' parents. I notice that the mother in this case appears to have had premiere local counsel, and that must not have been cheap. The paternal grandmother will foot some of their bill in this case since costs were assessed against her.
But then, of course, other losers as a result of this decision are the grandchildren of grandparents who can behave themselves who may be affected by this new burden of proof. IMHO. But you may disagree - please feel free to comment if you do! |
|
| Continue reading "2nd Appellate District Severely Limits GRANDPARENT VISITATION Under Family Code Section 3102" » |
|
Permalink | Comments(2)  |
| |
| October 31, 2011 |
| GRANDPARENT RIGHTS: Recent RIVERSIDE Case Orders VISITATION To GP After DEATH OF PARENT |
| Posted By Thurman Arnold, CFLS |
|
Hoag v. Diedjomahor (October 17, 2011), E050935
The Facts
The Fourth Appellate Division released a published opinion on October 17, 2011 in the case of
Hoag v. Diedjomahor, a case which was decided by recently retired Commissioner Michael McCoy in Indio, California, involving grandparent visitation rights upon the death of a parent per
Family Code section 3102. Commissioner McCoy's ruling in favor of the grandmother was upheld on appeal. Interestingly, the grandmother did not participate in the appellate level proceedings but nonetheless succeeded. Overturning a well reasoned trial court decision, where an abuse of discretion must first be shown, is always a difficult proposition.
Melville Diedjomahor (the father) and Kristen Hoag (the mother) were married in 2005. They lived with Kristen's mother, Shannon Hoag (the grandmother) in an apartment in La Habra. Kristen gave birth to their first daughter in 2006. Thereafter the parties separated. Melville moved to Desert Hot Springs, California, while Kristen and the minor remained with the maternal grandmother. Then the parties reconciled, and the family - including Shannon Hoag - moved into a residence together in DHS. In 2008 a second daughter was born.
Kristen filed for divorce in Indio in February, 2009. A month later she died unexpectedly as a result of previously undiagnosed epilepsy. Immediately following the death the children remained with the grandmother, and the father would come visit every few days.
Several months later the grandmother told the father she intended to file a guardianship proceeding. In reaction thereto, Melville demanded that she turn the children over to him. The proceeding was filed, alleging that the father was unfit because of injuries and also because he was in the country illegally and subject to deportation. Communications between the two rapidly deteriorated such that - according to grandma, he refused to give her any further visitation except that which was court-ordered; the father denied imposing this limitation to the trial court. In any event the GM was denied access to the children for some weeks after she filed her guardianship petition, until Commissioner McCoy entered visitation orders some three weeks later.
To complicate matters, grandmother was living together with Kristen's uncle, where the children and Kristen had also stayed for a time before her death, and - as we so regularly see if high conflict family law cases - father alleged that the uncle had improperly touched his niece, Kristen, years before when she was a minor. In 1993 grandmother's children had been removed from her custody because she had been using drugs. For these reasons grandmother should not have extended visitations, he argued.
Nonetheless, grandmother received visitation with the minors pending a trial. The guardianship proceedings were dismissed and continued within the family law action that Kristen had initiated. This visitation gave the grandmother three hours every Wednesday and 48 hours every other weekend, and she was allowed a daily phone call. This became her proposal for the final visitation order. It was based upon the mediator's recommendations.
Melville claimed at trial that he would permit grandmother to visit, but objected to any orders issuing for same and instead insisted it should be left to his discretion for day to day and moment to moment. He contended that overnights were not safe because the children might be exposed to the uncle (by this time the grandmother had moved into an apartment by herself, in the same complex as dad), that he wanted to study the kids on Wednesday, and he objected to daily calls because they interrupted what he was doing. He explained that once grandmother had filed court proceedings she had breached any trust that had previously existed between them. Hence, his final non-court order proposal was eight hours every other Saturday and one week during the summer with no sleep overs, and eight hours on grandmother's birthday.
Ultimately Commissioner McCoy found that while the father was in fact a fit parent, but that he had opposed grandmother's requests for what was in fact a reasonable visitation schedule. The Court specifically found that the father's testimony that he would allow non-court ordered visitation to occur to not be credible, and the trial court also dismissed the allegations regarding the uncle and the grandmother's past conduct (although noting that Commissioner McCoy had prohibited such contact in any event). It found that visitation was in the children's best interest, particularly so given the the years that grandmother had acted as a third parent for the children and the parties before the divorce was filed. Essentially, the trial Court ruled that a parent does not have unfettered discretion to impose visitation conditions at their whim where grandparents have played such an important historic role for children.
The Law Concerning Grandparent Visitation
This decision does an excellent job in reviewing and cleaning up California decisions about grandparent visitation in the wake of
Troxel v. Granville (2000) 530 U.S. 57, decided by the United States Supreme Court almost twelve years ago. Like
Troxel,
this case involves a grandparent, whose adult child has died, seeking visitation with that child's minor children over the objection of their surviving parent. As noted by Justice Richli, who wrote the opinion for our local Riverside County based appellate division, Troxel commands the courts to presume that the surviving parent's objection to grandparent visitation is in the best interest of the children. "However, this does not mean that the surviving parent is free to use the denial of visitation as Big Bertha in his or her personal war with the grandparent." Here, the trial court found that the surviving parent's claimed reasons for objecting to visitation were not reasonable and not credible; in essence, as he practically admitted on the stand, he objected to visitation mainly
to spite the grandparent. Moreover, he admitted that grandparent visitation would be in the best interest of the children. Thus, the presumption that he was acting in the best interest of his children was overcome, and the trial court constitutionally could and did grant the grandparent's visitation petition.
The trial court understood the law to be that it could constitutionally apply section 3102, including its best-interest test, provided the father was either (1) unfit, or (2) "opposed to occasional visitation." It expressly found that he was a fit parent. It concluded that "the issue really turns on whether dad is opposed to occasional visitation. If he is, then the court then addresses what visitation, if any, is in the children's best interest." It found that the father was "opposed [to] any . . . reasonable visitation involving the children and grandma." Thus, it proceeded to apply a standard best-interest test.
The father challenged this reasoning by arguing that the trial court erred by finding that he was opposed to meaningful visitation. Second, even assuming that he was opposed to meaningful visitation, he was still entitled to a presumption that his decision was in the best interest of the children.
The justices in this case stated:
"In Troxel, the surviving parent's willingness to allow visitation was just one of a number of factors that the Supreme Court took into account. Thus, the significance of this single factor, standing alone, is not at all clear. We have no way of knowing what the outcome would have been if the surviving parent had
not been willing to offer meaningful visitation.
On one hand, the Troxel plurality cited, with approval, various state statutes allowing courts to award visitation to a nonparent when a parent has denied visitation; it evidently viewed these as constitutional. (
Troxel,
supra, 530 U.S. at pp. 71-72 [plur. opn.].) On the other hand, it adopted a broad 'presumption that fit parents act in the best interests of their children.' (
Id. at p. 68.) It would seem that this should apply not only to a decision to limit visitation, but also to a decision to deny visitation entirely.
In fact, Troxel's discussion of willingness to allow visitation puts the parent in a 'damned if you do, damned if you don't' position. If the parent voluntarily allows some visitation, that could be viewed as a concession that visitation is in the best interest of the child. Certainly it is a decision regarding the child's best interest, to which the court must {Slip Opn. Page 15} accord 'special weight.' If, however, the parent refuses to allow
any visitation voluntarily, that, too, weighs in
favor of court-ordered visitation. What is a parent who genuinely believes that visitation would be detrimental supposed to do?
Because this issue is fraught with difficulty, we choose to assume - solely for the sake of argument - that the trial court erred by ruling that it was free to apply a best-interest test solely because the father was not willing to offer meaningful visitation voluntarily. This would mean that it was still required to presume that the father's visitation determination was in the best interest of the children and to accord special weight to that determination.
The trial court's other findings, however, show that, even if it had applied this standard, it would still have allowed visitation. Most crucially, it found that the father's claimed reasons for objecting to visitation were not reasonable and not credible. This left, as his real reason, a desire to retaliate against the grandmother for her attempt to take the children away from him. Indeed, he testified that he was contesting visitation because she had breached his trust by trying to take the children away from him, and she had been 'disrespectful' to him. We hasten to add that this is a completely understandable reaction. Nevertheless, it is not based on the best interest of the children. To the contrary,
it punishes the children for the sins of the grandmother. [Emphasis added].
Moreover, in closing argument, the father's counsel conceded that visitation with the grandmother would be in the best interest of the children. He merely argued that
court-ordered visitation would be detrimental. Thus, the trial court did not simply disagree with the father concerning the best interest of his children. Moreover, it did not fail to give sufficient weight to his determination of their best interest. Rather, based on its findings (and his concession), the presumption that his visitation determinations were in the best interest of the children was thoroughly overcome.
Evidently the father's counsel was trying to achieve the same outcome as in Kyle O. The father there, too, admitted that visitation with the grandparents was in his daughter's best interest and claimed that he would allow visitation voluntarily. He testified, however, that
court-ordered visitation was detrimental because it increased the hostility between him and the grandparents. (
Kyle O. v. Donald R.,
supra, 85 Cal.App.4th at pp. 858-859, 863-864.) He also introduced evidence that court-ordered visitation had interfered with the child's opportunities to spend time with him and her paternal relatives and that it conflicted with her other activities. (
Id. at pp. 857-858.) The appellate court concluded that "his preference for a less structured and more normal and spontaneous manner of visitation must be given deference." (
Id. at p. 863.)
Kyle O. is distinguishable, however, because here, the father (and his counsel) never really explained
why he objected to court-ordered visitation, even though he was supposedly willing to allow visitation voluntarily. When asked, he simply raised objections to the existing temporary visitation
schedule. For example, he claimed that the Wednesday evening visit prevented him from "study[ing]" with the children.
This was not an objection to court-ordered visitation.
In this appeal, the father claims that it was reasonable for him to be opposed to court-ordered visitation, as opposed to voluntary visitation, because the grandmother had 'a pattern of hostility' toward him. He argues that, unlike voluntary visitation, court-ordered visitation would give her a stick to beat him with - any time he violated an order, she would undoubtedly seek sanctions against him.
The problem with this argument is that the father himself never testified, at trial, that this was
why he opposed court-ordered visitation. Thus, the trial court did not have to accept this theory.
The father also argues that the trial court erred by dismissing his concerns about whether the children would be safe with the grandmother. The trial court, however, specifically found that these concerns were neither reasonable nor credible. Substantial evidence supports this finding. The supposed molestation was remote; it had occurred when the uncle was about 12 and mother was about 5. It was described as 'improper[] touch[ing];' the grandmother characterized it as 'playing doctor.' The children had stayed at the uncle's house for over a month without being molested. In any event, by the time of trial, the grandmother was no longer living with the uncle. The trial court could and did order that the children not be left alone with him.
The grandmother's drug use was similarly remote. Her loss of custody, although due, in part, to her use of drugs, had been only temporary. It did not appear that she had ever used drugs again. Last, but not least, again, the father admitted that visitation was in the best interest of the children and claimed that he was willing to allow visitation voluntarily.
Next, the father argues that the trial court erroneously placed the burden on him to prove that his objections to visitation were in the best interest of the children. Not so. He does not cite any portion of the record to support his claim, and we have found none.
Finally, the father argues that even if the trial court did not err by allowing some visitation, it erred by adopting a more extensive visitation schedule than he was willing to offer. He does not support this argument, however, with any analysis or citation of authority. Accordingly, we deem it forfeited....
We do not mean to suggest that, if not forfeited, it would have merit. The trial court found that the father's objections to visitation did not arise out of a genuine concern for the best interest of the children. Thus, the constitutionally established presumption that he was acting in the best interest of the children was overcome. This not only allowed but affirmatively required the trial court to determine what visitation schedule was in the best interest of the children.
* * *
The father argues that ... the trial court could not order visitation unless and until he had been given an opportunity to negotiate visitation voluntarily.
He had such an opportunity, however, in the course of the guardianship, as well as in this action. He even participated in mediation (which regrettably produced no agreement). According to the father, however, a grandparent must ask the surviving parent for a voluntary visitation arrangement before the grandparent can even file a visitation petition with the court. Thus, in his view, the fact that he had an opportunity to negotiate a voluntary visitation arrangement after this proceeding had already been filed is irrelevant. We find no authority for this in Troxel or
Punsly. Indeed,
Punsly is, if anything, to the contrary. It understood
Troxel to mean that "the parent must be given an opportunity to voluntarily negotiate a visitation plan," but it added that it was "irrelevant" when or why the parent did so.
(Punsly v. Ho,
supra, 87 Cal.App.4th at p. 1108.) Moreover, it held that, in the case before it, this requirement had been satisfied by the parent's agreement 'to voluntarily arrange visitation . . .
both before and after the [
grandparents]
petitioned the court for visitation.' (
Ibid., italics added.)
The father argues that it would be good public policy to make a request for voluntary visitation a precondition to filing a visitation petition. Even if so, this is an argument that must be made, if at all, to the Legislature. Section 3102 contains no such requirement, and the federal Constitution, as construed in Troxel, does not impose one."
Comments
Commissioner McCoy did an outstanding job in making a thorough and well-reasoned decision based upon the evidence. To resist visitation by a grandparent who has a close and substantial relationship with grandchildren, there needs to be real evidence in the record that the children's best interests in continuing, stable relationships with these third party nonparents, are not being ignored simply out of spite.
This case is a must read for all grandparents, or custodial parents, faced with a grandparent or other request for visitation rights by a non-parent. I will upload the opinion itself in a few weeks. It gives rich fodder for how to structure arguments on both sides in these often acrimonious, but always unfortunate, disputes.
However, as it turns out, this decision is not the final answer on the matter. I will discuss the more recent case of Rich v. Thatcher, out of Ventura County, shortly. But, this is not the Ventura "Thatchers", is it?
Please note that this decision is based upon Family Code section 3102, which only applies where one parent has died. The other grandparent visitation statutes are Family Code section 3103 and
FC section 3104. I would suspect, however, that this case will nonetheless generalize, to an extent that remains to be seen, to grandparent visitation where both parents are still living.
Thurman Arnold, III, CFLS
|
|
| Continue reading "GRANDPARENT RIGHTS: Recent RIVERSIDE Case Orders VISITATION To GP After DEATH OF PARENT" » |
|
| Permalink | Comments(0) |
| |
| August 14, 2009 |
| How does my sister get CUSTODY of her GRANDSON? |
| Posted By Thurman Arnold |
|
Q. My Neice has a 1 yr old son. She is always gone on drugs and alcohol. Her mother is basically in control of the boy. She cares for him 24/7, takes him to doctors...my niece doesn't seem to care for him. I told my sister in law she needs to get custody of her grandchild ASAP. She is afraid if she calls they will take him away from her. He is in a loving home, has own room and all the care he needs. We would take him but I have 2 boys myself, no room. I know he would be in the "system" until she legally adopts him...what do we do?
A. There is only one choice in the absence of a pending paternity or other proceeding between the niece and the father: A guardianship
proceeding. The niece's mother has no standing to file any other type of action; however, if another action is pending (again, a dissolution or a paternity action between the bio-parents, for instance) your sister can seek custody pursuant to
Family Code section 3041, which deals with custody to nonparents such as grandparents, by applying to be joined into those proceedings. Your sister in that case would be presumed to be the more appropriate custodian of the boy IF she can establish a stable placement exists with her and that she has "assumed, on a day-to-day basis, the role of his ... parent, fulfilling both the child's physical needs and the child's psychological needs for care and affection, and who has assumed that role for a substantial period of time."
The last portion is critical. If the child's mother gets her act together, or pretends to, its a bit close whether a one year period will satisfy a judge (has the situation been the same since birth?). Also, I would want to know whether the child's mother lives in your sister's house or has just parked the child there. If the former, it will be tougher.
If your sister is in control now and the child is protected, she should consult an attorney immediately so that she makes the right moves in case the time comes for her to take action. Consulting a qualified custody lawyer for advice now is a smart move.
Please see this link to nonparent custody issues. Custody of grandchildren is a specialized family law practice area.
|
|
| Continue reading "How does my sister get CUSTODY of her GRANDSON?" » |
|
| Permalink | Comments(0) |
| |
|