Nonparent Custody Attorney
Grandparent Rights
Grandparents are being called upon to assume in the day to day care and rearing of children in record numbers. A variety of adults, whether related by blood or marriage or not, may need to step forward and assume the role of parent. Such situations are often temporary and sometimes not. Disputes may arise between these caretakers and their own children over who should continue the primary parenting role of these minors. It can be the case that a child's best interests is not to be living with a parent having medical, legal, economic, or psychological difficulties. Unfortunately California law concerning nonparent custody is complicated and difficult, and favors biology over nurturing. Still, there are circumstances where nonparents may be awarded custody over a parent's objection.
California Family Code section 3040 creates an order of preference for the custody
of children which begins with custody to both, or to either, parent.
This parental preference is limited only by the best interests of children where
parental custody can be demonstrated to be detrimental to
children. Section 3040 provides that if
custody should not be or is not granted to either parent, custody may be awarded to the person or
persons in whose home the child has been living in a "wholesome and
stable" environment. These persons are often grandparents.
Family Code section 3041 creates a
legal presumption in favor of parents, which a
challenger may only overcome by presenting to the Family Court "
clear
and convincing evidence" that "granting custody to a parent would be
detrimental to the child and that granting custody to the nonparent is
required to serve the best interest of the child."
"Clear and
convincing" evidence means evidence 'so clear as to leave no
substantial doubt' or evidence which is 'sufficiently strong to command
the unhesitating assent of every reasonable mind'. The most difficult
burden to satisfy in American law is the familiar "beyond a reasonable
doubt" standard of criminal prosecutions. The easiest is the "preponderance of the evidence"
standard. The preponderance standard may be likened to the scales
of justice tipping slightly in favor of one party - 51% - meaning that something that must be proved is only slightly more probable to be true than not. Clear and convincing proof is said to require proof to an 80 to 85% certainty.
In grandparent or other nonparent custody cases there is a valuable exception to the clear and convincing
evidence standard under this statute:
"'
detriment
to the child' includes the harm of removal from a stable placement of a
child with a person who has assumed, on a day-to-day basis, the role of
his or her 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."
If a grandparent can show, by a
preponderance of the evidence
that they have already assumed this role
the "clear and convincing" burden
in favor of bio-parents evaporates. In such situations, a child who is better off when a nonparent may be protected.
If Court assistance must be sought, this area of family law is requires competent and sensitive legal counsel.
Contact Palm Springs family law attorney Thurman Arnold today
for a free initial consultation
concerning your grandparent custody or visitation matter.