Grandparents in California can have either child custody or guardianship of their grandchildren. The difference between custody and guardianship can be complicated because they are essentially the same thing. One distinction is that a California Family Law court grants custody orders while the California Probate court grants guardianship orders. The Law Offices of Edward Misleh, APC is a Sacramento law firm, located in Sacramento, California that handles grandparents rights.
The Law Offices of Edward Misleh, APC is a Sacramento law firm, located in Sacramento, California that practices family law and represents clients in Sacramento, California and clients in Northern California with services they need and deserve when addressing child custody and grandparents’ rights. Call now our Lawyer Hotline. We offer a free consultation to all new clients. Affordable rates and payment plans are also available. Call now 916-443-1267 for your free consultation.
California Grandparent Custody Rights
California Grandparent Custody Rights are the rights that grandparents have to visit their grandchildren. California Grandparent Custody Rights are detailed under California law which provides that a grandparent will be awarded reasonable visitation with a grandchild. To give a grandparent reasonable visitation with a grandchild, the court has to find both of the following conditions exist:
- A pre-existing relationship between grandparent and grandchild that has “engendered a bond.” This means that there is such a bond between grandparent and grandchild that visitation is in best interest of the grandchild.
- In balancing, it is in the best interest of the child to have visitation with a grandparent considering the rights of the parents to make decisions about their child.
California Grandparent Custody Rights are limited when the parents are married. In general, grandparents cannot file for visitation rights while the grandchild’s parents are married unless one of the following exceptions applies:
- The parents are living separately;
- A parent’s whereabouts are unknown for at least one month;
- One of the parents joins the grandparent’s petition for visitation;
- The grandchild does not live with either of their parents; or,
- The grandchild has been adopted by a stepparent.
California Child Custody
Child custody is the arrangement that parents have for the raising of their children. Chld custody orders grant one or both parent legal custody and physical custody. Legal custody is the right to make decisions regarding your child’s education, religious practice, and medical treatment. Physical custody includes the parenting time given to one parent after designating the primary parent.
Guardianship is established by a California Probate court order that legally places a child in the care of a guardian. The child lives with the guardian who has physical custody of the child. The parents’ custody rights are suspended but they still have parental rights which are not terminated by the guardianship. A California Probate court guardianship order supersedes a California Family Law court custody order because the guardian has the right to act on behalf of the child, while the parent’s rights to do so are legally on hold.
California Guardian Rights
Parents are the legal guardians of their children at birth and continue to be so until a California Probate court order names someone else as guardian. A non-parent guardian has the same rights as a parent. They can apply for and authorize medical care, make decisions for the child social and extracurricular activities, and interact with the child’s educators to make educational decisions.
California Foster Care
In California, The Department of Child Social Services can remove a child from the home should it be determined that the child is at risk of injury, abuse or neglect. Child Protective Services will apply for emergency orders seeking to place the child in foster care. Should the problem which created the risk to the child not be corrected, the State of California can then terminate parental rights so that another family can assume guardianship of the child or adopt the child. The child remains in state custody until parental rights are terminated and guardianship rights are ordered.
California Termination of Guardianship
Parents can voluntarily award guardianship of a child, on a permanent or temporary basis, to another individual should they not be able to care for their children themselves. When this is done, the parent usually has included in the court order a right to revoke the guardianship which can be done in a subsequent petition to the court. Temporary guardianships usually have a time limit imposed by the probate court. At that time, the parent and guardian must either renew the guardianship arrangement or it automatically terminates.
California Guardianship and Third-Party Custody (Grandparents and Relatives)
The terms “guardianship” and “third-party custody” are often used interchangeably however, there are differences. Guardianships are ordered by a California Probate court while Third-Party Custody is ordered by a California Family Law court.
For a guardianship, the potential guardian must prove that the parents are unfit, unwilling or unable to care for the child. The guardian must file an annual report to the Probate Court as to the well-being of the child. The legal guardianship remains in place unless a parent petitions for the guardianship to be set aside. The probate court must then find that the parent is now fit, willing and able to care for the child, and it is in the best interests of the child that the guardianship be set aside.
A Third-Party Custody petition is filed in a California Family Law Court and may only be brought when a divorce or other custody proceeding is pending. A potential third-party custodian (most often grandparents) must prove that each parent is unfit, unsuitable or unable to be custodian, or the welfare of the child requires, and it is in the best interests of the child to be placed in the care of the potential custodian. A Third-party Custody does not require annual reporting to the court. A judgment for Third-Party Custody remains in effect until modified by a California Family Law Court. Modification of Third-Party Custody requires showing that a change in circumstances of the child or the custodian has occurred and that a modification is necessary to serve the best interests of the child.
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