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