Grandparents Rights

Do Grandparents Rights Supersede Parents Rights?

One of the most common concerns about grandparents rights is that it can be used in cases where parents have purposefully cut off toxic grandparents. California law recognizes that parents have the right to make decisions about how they raise their children. In some cases, some of those decisions may involve cutting off grandparents when the parents believe that a relationship with a grandparent is not in their child’s best interests. In these scenarios, it is very rare for grandparents rights to supersede the rights of parents.

The law also recognizes that during times of divorce or separation, there is a lot of upheaval in a child’s life, especially with joint custody arrangements. Even though grandparents may be upset that they don’t get the regular sleepovers with their grandkids that happened when their parents were together, the custody agreement takes precedent over grandparents rights. The court will very rarely want children shipped between more than two homes or prioritize grandparents rights over a child’s relationship with their parents. Therefore, if the parents are not deemed unfit, then grandparents rights will not supersede the rights of the parents. As a parent, if any of the grandparents are threatening to assert their grandparents rights, you should speak to an attorney.

Grandparents Rights in California Law

Grandparents rights in California allow grandparents to petition the court to seek reasonable visitation with their grandchild. Before granting grandparents rights, the court will consider the following factors:

• If a relationship already exists between the grandparent and grandchild
• If there is a bond between the grandparent and grandchild that would be in the best interest of the grandchild to maintain
• If granting grandparents rights over the parents decision is in the best interest of the grandchild

Grandparents rights generally can’t be asserted while both parents are married, but California law provides the following exceptions:

• One of the parent’s whereabouts is unknown, and they have been missing for a month or more
• The parents are living apart
• The grandchild has been adopted by a stepparent
• The grandchild does not live with either parent
• One of the parents joins the grandparents to petition for visitation rights

Even when the court grants grandparents rights and mandates visitation, the parents can petition to end the visitation if the circumstances change. For example, if the parents get back together or if the missing parent shows up again.

In California, the court encourages parents and grandparents to try and resolve these issues before petitioning for grandparents rights. They should seek mediation services or therapy to try and come to a satisfactory agreement that is in the best interests of the child. Grandparents should seek not only to preserve the relationship with the grandchild but with the parent to avoid situations where they need to assert grandparents rights in court. This can mean recognizing the rights of the parent to raise their child as they see fit and understanding that parenting decisions can be a touchy subject.

California law recognizes that grandparents who raise their grandchildren while the parents are unfit to raise their child or are incarcerated or absent may have additional rights to grandparents rights. It is recommended that grandparents in that situation seek guardianship, so they have legal rights to care for the child and make medical and educational decisions. Having guardianship will also give them additional rights to grandparents rights.

What Is The Process to Petition The Court For Grandparents Rights?

The first step in petitioning for grandparents rights is to hire legal representation. There are a number of different variables that will affect the method of filing the petition for grandparents rights and the correct way to argue the case.

For example, when filing for grandparents rights, the grandparent can tack their petition onto an existing case about the custody of the children. If there is no current case about the custody of the children or the divorce, then the grandparents will need to file a new case petitioning for grandparents rights.

Some courts have specific forms for petitioning for grandparents rights, if the court doesn’t have specific forms, then they may use other forms instead. Your attorney will be able to help you with the correct process. Alternatively, the self-help center at your court will have information about which forms to fill out and how to fill them out.

9 Steps to Petitioning For Grandparents Rights

• • Determine if a case is already in family court involving the parents and grandchildren – If there is currently a domestic violence case, divorce proceedings, or custody case open, then you will file your grandparents rights petition as part of that case. If not, then you will file paperwork to start a new case.
    
    
  • Fill out the appropriate forms – Visit the court’s self-help center or ask your attorney for help with which forms you need and how to fill them out correctly. You will need to fill out Form-FL-300 which is a Request for Order form. On this form you will need to detail why you are asserting your grandparents rights and what visitation schedule you are requesting from the court. In order to give the judge enough information to determine if they should grant grandparents rights, you should include information about the relationship you have with your grandchild and why maintaining that relationship is in the best interest of the grandchild. You may need to fill out additional forms like Form-FL-311 Child Custody and Visitation Application Attachment Form or Form-MC-031 Declaration Form. It is best to check what forms are required for grandparents rights in your local court.
    
    
  • Ask Someone to Review Your Forms – If you are working with an attorney, ask them to review your forms (or they may fill out the forms on your behalf). Alternatively, ask the family law facilitator at your local court or the self-help center to review your forms to make sure they are correct. Incorrectly filled out forms can mean the process is delayed, and you have to pay additional filing fees. When having your grandparents rights forms reviewed, ask if you are missing any forms or if there is additional forms or information you should attach to your grandparents rights petition.
    
    
  • Make copies of the forms – You will need to make at least 3 copies of the forms. You will file the original with the court and should keep one copy for your records. One copy will go to each of the parents. We recommend making an additional copy (so 4 copies in total) to keep as a spare just in case. Please note that if someone else has custody of your grandchildren, then you will need to serve them with notice too. Ask whoever is reviewing your grandparents rights petition to advise you on the number of copies you need.
    
    
  • File your grandparents rights petition – Go to the court clerk’s office with the forms and the copies. The court clerk will take the filing fee, look over the forms to ensure there is no missing information and file your grandparents rights petition. They will stamp each copy to prove it has been filed, so you can serve the copies.
    
    
  • Note the mediation date or court date – When you file the grandparents rights petition, the court clerk will set the court hearing date. Most courts will set a mediation meeting between both parties automatically to try and get the case resolved before the hearing. You should ask the court clerk if you are unsure.
    
    
  • Serve the parents – Notifying the parents of your grandparents rights petition needs to follow a strict legal procedure called “service of process.” You must serve notice to all the parties involved, including both parents and anyone else who has custody of the grandchild. The person serving the papers must be over the age of 18 and cannot be involved in the lawsuit. In some cases, the papers must be served in person by a particular deadline. No matter how the papers are served, you need to get a receipt confirming they were served. Ask your lawyer or the self-help center at the court for more information on the service of process for grandparents rights. If you do not provide notice in the correct way, it can invalidate your petition for grandparents rights.
    
    
  • File the Proof of Service – Once you have the receipt proving that you served the papers correctly, you need to make a copy and file the original with the court along with Form FL-300 or FL-335 Proof of Service form.
    
    
  • Attend Mediation If Applicable – Most courts will order mediation services to try and resolve the issue without needing a court hearing. The mediator is a neutral third party who keeps the discussion on topic. The grandparents rights can be discussed, as well as visitation schedules agreed upon. The mediator will give each party the chance to say their bit and ask each side to consider what the other party is saying. Their recommendations are not legally binding, but they can help put things in perspective. For example, if the parents agree to split every second weekend with their child, so each parent has time to do activities and fun things with their kids, it may be unreasonable for grandparents to request regular weekends with the kids. If the parents are moving out of state, then even if the grandparents may have grandparents rights, it might be too far to logistically see the grandparents as often as they wish.
    
    
  • Attend the Court Hearing – If the grandparents, parents, and any other guardians are unable to come to an agreement through mediation, then all parties will be required to attend a court hearing. The judge will review the petition for grandparents rights and any papers the parents or other guardians may have filed in response. They may take into account the current custody agreement in place between the parents and may ask questions of the party to better understand the situation. While the legal term is grandparents rights, the judge will make a decision based on the best interests of the child.

What Happens After a Grandparents Rights Court Hearing?

The judge’s decision is legally binding, and a court order will be issued. If you are the one who filed the petition for grandparents rights, then you (or your attorney) will be asked to prepare the court order, and the judge will sign it. In some courtrooms, the court clerk will prepare the court order.

Each party must stick to the court-mandated grandparents rights visitation schedule if one was ordered. If circumstances change, then any of the parties can petition the court for a new visitation schedule or to revoke grandparents rights.