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Can I have visitation or be appointed the guardian of my grandchild?

According to the US Census Bureau, 10% of grandparents live with at least one grandchild in their home. Many of these households are actually maintained by the grandparents, and in some cases, there is no parent in the home, and the grandparent has taken on the responsibility of caring for his or her grandchildren. Even when a grandparent does not live with or provide for his or her grandchildren, many grandchildren form meaningful relationships with their grandchildren.

While many grandparents might play a major role in the upbringing of their grandchildren, the rights that a grandparent has are not equal to those of a parent. So what can a grandparent do if he or she had a falling out with the grandchildren’s parents, or if the death of their son or daughter results in the other parent prohibiting the grandparent from seeing the children? What rights do grandparents have?

When the parents are married

If a grandparent has been prohibited from spending time with their grandchild, and the parents of the child are still married, there is typically no way to file for visitation. There are exceptions to this, for example, if the parents live separately, if one parent’s whereabouts have been unknown for at least a month, if a parent joins the petition for visitation, if the child does not live with either of the parents and if the child was adopted by a stepmother or stepfather.

What do I need to be successful in my petition?

In order to succeed in a petition, you will first have to show that you have had a relationship with the grandchild. Under the language of the law, you will have to provide evidence that you have “engendered a bond” with your grandchild. Additionally, the court will want to know that the visitation would be in the best interests of the child. If you are a grandparent who provided for your grandchildren or lived with them, and you have had a good relationship with them, then you have a good argument for visitation. If you were abusive to the grandchildren, the court may find that visitation is not in the child’s best interests. If you never met your grandchild, but now wish to form a bond with that child, you will also not be well situated to succeed in a petition for visitation.

What if I have been the caregiver for the children, and the parents are not able to care for them?

In some cases, both of a child’s parents might be incapable of providing for and caring for the child. This might be the case if the parents are ill, have serious mental health problems, are abusive, in prison, or have debilitating drug addictions. In these cases, it is possible to get guardianship of a child. As the legal guardian, a person has the responsibility to care for the child, but the parents still have parental rights and can request visitation with the children. It is possible for the court to end a guardianship if a parent shows that they are capable of caring for their children. This makes guardianships different from adoption, which permanently ends the parents’ rights.

At Milligan, Beswick, Levine & Knox, we understand the complexities of grandparents’ rights, child custody and visitation cases. Contact us today at 909-798-3300 for a free consultation with one of our family law attorneys.


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Stephen Levine, is a Board Certified Specialist in Criminal Defense — an honor achieved by only the top criminal law attorneys in California. Mr. Levine has over 40 years of experience in criminal defense and family law serving Southern California, and is a highly regarded Super Lawyer as well as AV Rated attorney.