B. Access to Grandchildren
Through Litigation
ON
THIS PAGE:
(1)
In General
Grandparents have no legal rights of any kind in connection with custody or visitation of their
grandchildren, unless and until they get a court order for it.
In other words, the only right you have, as a grandparent, is the right to ask the court for
an order allowing you access to your grandchildren.
(2)
Acquiring Custody and Visitation Orders in Family Court
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* * * *
a.
Common Restrictions in Any Family Law Proceeding Involving
Grandparent Visitation
The court’s discretion to grant grandparent visitation, in any family law proceeding, is subject
to the following restrictions:
(1)
The court generally can not order primary custody to a grandparent in a family law
proceeding;
(2)
If both parents object to grandparent visitation, then the court will assume that grandparent
visitation is not in the grandchild’s best interest, until proved otherwise;
(3)
If one of the parents has been awarded sole legal and physical custody of the grandchild in a
prior action, and that parent objects to grandparent visitation, then the court will assume that
grandparent visitation is not in the grandchild’s best interest, until proved otherwise;
(4)
If the grandparent is subject to a restraining order, then the court will assume that
grandparent visitation is not in the grandchild’s best interest, until proved otherwise; and,
(5)
If one of the parents of the grandchild is not a party to the action, but has custody or
visitation rights to the grandchild, then the court can not order grandparent visitation which
conflicts with the custody and visitation rights of that non-party parent.
b.
Child Support Issues in Any Family Law Proceeding Involving
Grandparent Visitation
Grandparent visitation orders may affect both the parents’ and the grandparent’s child support
payments for the grandchild, as follows:
(1)
The court can allocate the grandparent visitation time in different ways between the two
parents. This may alter the amount of child support
which a parent pays or receives on behalf of the grandchild; and,
(2)
The court may also order either parent, or the grandparent, to pay additional child support
corresponding to the grandparent’s visitation. That additional child support should be limited to
costs closely associated with the visitation. Such costs might include the grandchild’s
transportation to and from the grandparent, and the grandchild’s medical expenses, day care costs
and other necessities while visiting the grandparent. If the court orders the grandparent to pay
support, that support should be limited to only those costs essential to facilitate the grandparent’s
visitation.
c.
Procedure:
Court Actions Involving Custody or Visitation of the
Grandchild by the Parents
A grandparent may petition to become a party in any family law proceeding between the parents of the
grandchild, in which custody or visitation of the grandchild is at issue.
Such proceedings include: divorce actions; paternity actions; domestic violence restraining
order proceedings; and, exclusive custody actions.
The grandparent must be formally joined in the action as another named party to that action. The grandparent must also give formal notice to: each of the grandchild’s
parents, including non-party parents; each of the grandchild's stepparents; and, any other person
who has physical custody of the grandchild.
d.
Procedure: No Court Action Involving Custody or Visitation
Is Pending
If there is no pending family law proceeding between the parents of the grandchild, grandparents can
start their own independent family law action to acquire visitation with a grandchild.
As in a proceeding originally between the parents, the grandparent must give formal notice to the
grandchild’s parents, the grandchild's stepparents, and to any other person who has physical
custody of the grandchild.
If the grandchild’s parents are married, the court will not grant any grandparent visitation
order, unless:
(1)
The parents are currently living separate and apart on a permanent or indefinite basis; or,
(2)
One of the parents has been absent for more than one month without the other parent knowing the
whereabouts of the absent parent; or,
(3)
One of the parents joins in the grandparent's visitation petition; or,
(4)
The grandchild is not residing with either parent.
Otherwise, the court may have the option, but not the obligation, to grant reasonable visitation to
the grandparent, subject to the following requirements:
(1)
The grandparent must convince the court that there is a preexisting relationship between the
grandparent and grandchild, and that they have formed a bond such that visitation is in the best
interest of the grandchild; and,
(2)
The court must also balance the grandchild’s interest in grandparent visitation, against the
parents’ right to exercise parental authority. In other words, the grandparent visitation order
must not conflict with the parents’ custody and visitation rights.
(3)
Acquiring Custody and Visitation Orders in Probate Court (Guardianship)
The legislative policy behind the guardianship rules, is to provide to the child a "permanent,
stable, safe and loving home."
A grandparent may acquire full custody of a grandchild in probate court, by petitioning the court to
become the grandchild’s guardian. There is currently
no “limited” guardianship available that allows a grandparent to acquire anything less than full
custody.
The grandparent must first verify there are no prior court orders concerning custody of the
grandchild. Next, the grandparent must give
notice to the grandchild’s parents, siblings, and other grandparents.
The court will then appoint an investigator. The
investigator will interview and investigate the grandchild’s parents, the petitioning grandparent,
other relatives who might be potential guardians, and other persons in the home.
The investigator will then report the investigator's observations and recommendations to the
court.
Thereafter, if the matter is uncontested, the court can grant the proposed guardianship after
finding only that it is necessary and convenient.
However, if anyone
objects to the proposed guardianship, the court will not grant it, unless the grandparent proves
that custody with the grandchild’s parent would be detrimental, and that custody with a non-parent
is in the grandchild’s best interests.
That detriment must be proven by “clear and convincing evidence,” which is a substantially
greater burden of proof than the usual “preponderance of the evidence” standard. However, the grandparent need not necessarily prove that the grandchild’s
parent is unfit. For example, in one case the
grandparent successfully met this burden, by proving that removing the grandchild from the
grandparent’s home, after having already lived with the grandparent for a while, would be
unacceptably traumatic for the grandchild.
If the court grants the guardianship, the grandchild’s parents may subsequently petition the court
to end the guardianship and thereby regain custody of the grandchild.
However, if the grandparent/guardian objects, the parents must prove that their overall
fitness as parents is sufficient to overcome the inherent trauma of removing the child from the
grandparent’s custody.
(4)
Acquiring Custody and Visitation Orders in Juvenile Dependency Court
("Children's Court")
In a juvenile dependency proceeding, the County seizes custody of a child, based on allegations of
abuse, neglect, or abandonment against the child’s parent or caregiver. The legislative policy
behind such proceedings, is to protect the safety of the child first, and to advance the child's
best interests in general thereafter.
During the time before the court reunites the child and the parent, the court will need to place the
child under the care of someone else. The court’s
first choice will usually be a close relative, if available, for two reasons:
First,
it is more likely that a close relative will be more interested in taking good care of the child
than will a stranger; and,
Second,
it more likely that the child will suffer less trauma from being placed with a familiar relative
than with a stranger.
While the dependency proceeding is pending, a grandparent can request that the court temporarily
place the grandchild in the grandparent’s home during this time.
However, if and when the court determines that it is safe and appropriate for the child to
reunite with the parents, the court will order that the child be returned to the parents at that
time.
On the other hand, the juvenile court can, under some circumstances, order that the parental rights
be terminated altogether, and place the child for adoption or guardianship.
If this occurs, a grandparent can petition the court to adopt or be appointed guardian. If
successful, the grandparent will thereby acquire sole custody of the child.
Otherwise, as soon as the court orders that the child be reunited with the parent, a grandparent’s
options revert to those provided by family
court and probate
court proceedings.
