Can Grandparents Pursue Child Custody During a Divorce?

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Can Grandparents Pursue Child Custody During a Divorce?

So, your child is getting divorced, and you’re worried about your grandchild’s well-being. Can you file for custody of them during the divorce process? In California, the answer is “sometimes.”

Grandparents often play major roles in the lives of their grandchildren. However, that doesn’t immediately translate to having legal rights toward them. In California, grandparents have some rights toward their grandchildren, but these are significantly less than those automatically granted to parents. Below, we break down who has the right to child custody in California, grandparents’ rights in particular, and how to file for custody if you’re genuinely concerned for your grandkids’ safety. 

Who Has the Right to Child Custody in California?

In California, only the legal parents of a child automatically have any right to custody. The law assumes that the parents will share legal and physical custody over the children until and unless it is no longer in the kids’ best interest. 

However, there are situations where non-parents can petition for rights to care for a child. If it is determined that a child is unsafe with their parents, other family members or caretakers request temporary or permanent custody. For example, if both parents are incarcerated, a non-parent can file for custody in loco parentis or in place of the parents.

If you have already spent significant time raising the child and the parents are no longer capable, willing, or safe to raise kids, you have a strong case for receiving custody. However, if either parent still is able and willing to safely care for the child, your case becomes more difficult.

In some cases, it may not be necessary to petition for guardianship. Suppose your grandchild has been removed from their home for their own safety. In that case, California county social service agencies are obliged to assess their nearest relatives and place them with someone if possible. The agency must place the child with their nearest safe and consenting adult relative. Regarding priority, grandparents are tied with the child’s adult siblings for placement. As such, you are most likely the first choice for temporary guardianship of your grandchild if they are removed from their home. 

Grandparents’ Rights Under California Custody Laws

In California, grandparents do not receive the right to make legal or medical decisions for their grandkids or have them live in the same home unless they are named as their guardian or legal parent. However, grandparents have one unique right compared to other family members: the potential for visitation. 

If a child’s legal parents are married, petitions for visitation are not usually granted. However, there are exceptions, such as:

  • The parents are legally or unofficially separated.
  • One parent has been missing for at least a month.
  • One parent is incarcerated or institutionalized involuntarily.
  • One parent petitions for grandparent visitation on your behalf.
  • Neither parent has custody.
  • A stepparent has adopted the child.

If the parents are unmarried or divorced, there are fewer restrictions on filing a visitation petition as a grandparent. In this case, you can petition to spend time with your grandkid even if the custodial parents do not want you to. 

Visitation does not grant you the right to live with or make decisions for your grandkids. The purpose of grandparent visitation is to allow you to maintain a relationship with your children’s children. The court will consider the child’s best interests when deciding whether to award you visitation, just as in standard custody cases. However, if there are no safety or health concerns, courts often grant grandparent visitation because it provides the child with a greater familial support system and encourages more consistency in the child’s relationships.

Filing for Custody of Grandchildren During Your Child’s Divorce

Pursuing rights over children as a non-parent is often complex. California law prioritizes parents’ rights to maintain relationships with their children and vice versa, so even other family members can only get custody if it is truly no longer in the kids’ best interest to be with their parents. 

To receive custody, non-parents, including grandparents like you, must demonstrate the following:

  • You have a long-standing relationship with the children. If you regularly spend time with your grandchildren or have been their primary caretaker, proving this is simple.
  • It is in the children’s best interest to be in your care. You can provide better care and circumstances for the kids than they are currently experiencing. Being in your care would be a big enough improvement to counteract no longer being in their parent’s care.
  • It would be detrimental to the children if they were not in your care. Something about the circumstances the kids would experience outside of your care would harm their development. For example, they may be forced to live with an abusive parent or in a dangerous environment.
  • You are capable of caring for and parenting the children. You have the time, energy, ability, and financial resources to give the children a better upbringing than they would otherwise receive.
  • The children’s parents are unmarried, separated, or deceased. 

If you can demonstrate these facts, the court may grant you physical and legal custody of your grandchildren.

Consult an Expert California Child Custody Attorney

You want the best for your grandkids. Sometimes that may mean seeking custody or visitation orders to better care for them. If you wish to seek custody as a grandparent, you should speak with an experienced family law attorney like the professionals at CC LawGroup.Our lawyers have decades of experience helping families resolve conflict and achieve the best outcome for the kids. We can help you determine the best course of action to protect your grandkids and, if necessary, pursue legal custody. Learn more by scheduling your consultation today.