Custody battles can take a heavy toll on everyone involved. It is difficult for children and their parents, but it can also be difficult for grandparents and other relatives close to the family struggling to work out these issues. Grandparents and other relatives may have custodial and visitation rights when it comes to minor children—depending on the circumstances of each case.
Rights of Non-Parental Family Members to Seek Custody of a Minor Child
California law allows non-parents to seek custody of a minor child or children depending on the child’s relationship with their parent(s). Usually, courts will consider the child’s best interest when determining custody, visitation, housing, and child support.
Suppose a court determines that a child’s parents or remaining parents are not fit to care for their child adequately. In that case, a court may look to other persons (mainly family members) to determine if any are fit to take custody of the child—commonly called guardianship.
Determining Guardianship for Non-Parental Family Members
Guardianship is defined as a person other than the parent of the child that has (1) custody of the child, (2) manages the child’s estate, or (3) both. Non-parental guardianship actions typically begin when a non-parental person (usually a grandparent or other family member, but not always) commences legal action in family court to gain guardianship of the child.
Usually, when non-parent petitions are awarded guardianship of a child through the court system, the guardian must still file petitions regarding significant life changes to the child, which can include changes regarding the child’s housing, education, medical, etc. care, among others.
Types of Guardianship
California law generally recognizes two forms of guardianship: guardianship of the person and guardianship of the estate. Although some aspects overlap, guardianship comes with two distinct sets of roles and responsibilities.
Guardianship of Person
Under the guardianship of a person, the guardian is required to care for the child’s physical wellbeing, similar to a parent’s responsibilities. The guardian has full legal and physical custody of the child. Guardians are most often responsible for the children:
- Daily needs, including food, clothing, and shelter.
- Physical safety.
- Physical and emotional wellbeing and growth.
- Medical care.
- Educational needs.
- Special needs.
Guardians are charged with the supervision of the child and may be liable for harm caused to the child in instances of neglect. Courts will often appoint counselors or other public officials to evaluate the child’s current living situation to determine whether the parent(s) or a guardian should have custody of a child.
Courts always prefer to place a child in their parent’s custody, but certain circumstances may prevent this from happening.
Guardianship is usually awarded when the parent(s) of the child:
- Suffer from severe and debilitating mental or physical ailments.
- Enlisted in the military and must travel overseas.
- Enrolled in a rehabilitation program.
- Incarcerated in a correctional or psychiatric institution.
- Have a history of substance abuse (including drugs and alcohol).
- Have a history of abusing the child, other children, or persons.
- Have demonstrated that their custody of the child is not in the child’s best interests.
Guardianship of Estate
Unlike guardianship of a person, guardianship of estate focuses on a guardian’s role in supervising the management of a child’s financial wellbeing. For example, a child under 18 that inherits or earns a sum of money may require the appointment of a guardian to oversee those assets. In many instances, a guardian may be responsible for a child’s person and estate, but not always.
Guardianship of estate includes:
- Management of the child’s assets.
- Management of the child’s property.
- Reasonably prudent investment of funds for the child’s financial wellbeing.
Guardianship of an estate can occur when, tragically, both parents of the minor child are deceased. A child with nothing more than toys, clothes, and small assets likely only needs a personal guardianship. However, a court may appoint an estate guardian if the child inherits their deceased parent’s estate, including bank accounts, investment accounts, securities, and real property.
Difference Between Guardianship and Adoption
Guardianship and adoption may seem similar, but both have very different roles and responsibilities in caring for a child.
Guardianship occurs when a court is shown that a parent cannot care for their child, and it is in the child’s best interest to be taken care of by another person. However, guardianship does not automatically terminate parental rights. For example, parents still have the legal right to petition for custody or visitation. Further, courts may assign case workers and counselors to periodically check in on the child while in a guardian’s custody.
On the other hand, adoption permanently terminates a person’s parental rights to their child. An adoptive parent earns exclusive legal rights to the child as if that person was the child’s birth parent. Further, adopted children can inherit the estate of their adoptive parents without an estate planning tool (will or trust). Still, a child under the guardianship of a person does not have the same rights to their guardian’s estate. Lastly, the court or a public agency does not supervise adopted families.
Visitation and Other Rights of Grandparents
California law provides grandparents the opportunity to seek visitation rights to their grandchild. If a grandparent files for visitation of their grandchild, a court must find that:
- The child and the grandparent have a pre-existing relationship that has “engendered a bond” between the two—meaning that the bond between both is strong enough to show that it is in the child’s best interest to visit their grandparent; and
- The child’s best interests are balanced between a parent’s role in raising their child and the grandparent’s ability to visit their grandchild.
In many cases, grandparents may be denied visitation when both parents have custody of their children. However, a grandparent or grandparents may successfully petition a court for visitation if:
- The child’s parents live separately.
- A parent has been missing for at least a month or longer.
- A parent joins the grandparents in their visitation action.
- The child does not currently live with either parent.
- A stepparent has recently adopted the child.
Contact Us Today
At Steven Bishop, our family law attorneys have years of experience assisting California grandparents and other family members with custody and visitation actions. For a consultation, call us at (619) 724-4547 or visit our website today.