Grandparent Custody and Visitation
There are a number of important aspects to nonparent custody and visitation
which deal with the rights of people who are not biological or legal parents
of children to assume day to day responsibility for them, or merely to
be in their lives when legal parents object (often the son or daughter
in law). This circumstance sometimes occurs within the context of grandparent
custody/visitation, or step parent visitation rights. It also may include
siblings, other relatives, and foster parents.
Family Code section 3040 creates an order of preference for custody of children which begins with
custody to parents. This parental preference is a fundamental policy of
California child custody law, and its application is limited only by the
best interests of children where parental custody can be demonstrated
to be detrimental to a child.
This public policy has unfortunate aspects. Some parents act as if children
are property, and believe that they are the only qualified decision makers.
Sometimes they cut off older family members from the kids. But many parents
are not equipped for the parenting task, and our society treats parenting
as if we are all born knowing how to parent well. Grandparents who have
already been through the parenting experience tend to be wiser than young parents.
If custody should not be or is not granted to either parent, courts must
next grant custody to the person or persons in whose home the child has
been living in a "wholesome and stable" environment.
3040(b). If no such person is available then custody may be awareded to any other
person deemed by the court to be "suitable and able" to provide
adequate and proper care and guidance for the child.
California custody courts have and exercise the "widest discretion"
to choose a parenting plan that is in the best interests of the child.
Rules for custody differ from those dealing with visitation. California
rules relating to grandparent visitation, step parent visitation, or visitations
by others are found beginning at Family Code section 3100(a). "In
the discretion of the court, reasonable visitation rights may be granted
to any other person having an interest in the welfare of the child."
Family Code section 3101 addresses stepparents. Sections 3103 and 3104
deal with different grandparent visitation scenarios.
Nonparent custody is a different animal than nonparent visitation. I will
separately write a blog about visitation and link it to this page. In
the meantime, take a look at the visitation statutes are found at 3100 et seq.
Grandparent Custody Statutes
The grandparent custody statute is found at
California Family Code section 3041.
The rules to qualify for nonparent custody are, appropriately, very difficult
to satisfy. I say "appropriately" because we need to be skeptical
of the State, or of family outsiders, imposing their will and views upon
us. At the same time, we need to listen to our tribal members, so to speak.
Family Code section 3041 is a powerful statute. It creates a presumption in favor of parents objecting
to nonparent custody, which a grandparent, for instance, 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'.
There is an extremely valuable limitation to the clear and convincing
evidence standard in nonparent custody cases 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 prove that they are a person described above, then
not only does the "clear and convincing" burden evaporate, but
"this finding shall constitute a finding that the custody [with the
nonparent] is in the best interest of the child and that parental custody
would be detrimental to the child absent a showing by a preponderance
of the evidence to the contrary."
Thus, in grandarent contests with parents over custody, they are going
to lose unless the grandparent, over a substantial time period (defined
by the age of the child), become a de facto parent. This often happens
where children are left in the care of a grandparent for many months or
more, while the custodial parent is away.
Protect your grandchildren!
Author: Thurman Arnold, III
