Do Grandparents or other relatives Have Custody Rights in California

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

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.

Adoption

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:

  1. 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
  2. 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.

Adopting a Step Child – What is the Process and Why is it Important?

Many couples who enter into marriage or domestic partnerships in California have a child or children from a previous relationship or one partner may choose to use surrogacy to become a parent. By virtue of the legal status between the partners, the non-parent becomes a stepparent to the children of their partner.  But the status of being a stepparent does not confer any legal rights between the stepparent and the children. Only by adopting a stepchild can a stepparent ensure that they will be recognized as the legal parent of the child and given the associated rights and responsibilities.

Stepparent and Domestic Partner Adoptions in California

A stepparent or domestic partner who wants to adopt the child or children of their partner must initiate the process by filing certain forms with the court. There are two adoption processes for stepparents depending on their relationship with the birth parent at the time of a child’s birth.

  • Stepparent adoption to confirm parentage – This is a streamlined adoption process for the stepparent that was in a legal union with the birth parent at the time of the child’s birth and is still in the relationship. 
  • Stepparent/domestic partner adoption – If the stepparent was not in a legal relationship with the birth parent at the time of the child’s birth or is no longer in a legal relationship with the birth parent, the adoption process is more complex. A child welfare specialist must conduct an investigation and prepare a report for the court. In most cases, the other birth parent must be notified of the adoption and agree to it.

In either type of stepparent adoption, if the adoptive child is age 12 or older, the child must also agree to the adoption.

Initiating the Stepparent Adoption Process

A stepparent can begin the adoption process by submitting the adoption request and adoption agreement forms to the superior court clerk. The adoption request provides a judge with information about the stepparent and the child to be adopted. For children age 12 or above the adoption agreement evidences the child’s willingness to have the adoption approved.

If a stepparent is requesting an adoption to confirm parentage, the stepparent and the birth parent must complete declarations about their relationship at the time the child was born and whether the child was conceived through surrogacy or may have another legal parent. If everything appears in order, a judge will usually sign an adoption order approving the adoption.

For the stepparent who was not in a legal relationship with the birth parent at the time of a child’s birth or is no longer in a relationship with the birth parent, the court is going to take a closer look at the adoptive parent to make sure the adoption is in the best interests of the child and that every attempt be made to notify any other person who may lose parental rights if the adoption is approved.

Stepparent Investigation, Consent to Adopt, and Termination of a Birth Parent’s Rights

A social worker or other approved family services professional will typically interview the stepparent and prepare a report that the court uses to ascertain the parental fitness of the stepparent and the likelihood that another birth parent exists.

Because adoption by a stepparent will terminate the rights of the other birth parent, obtaining consent to the adoption from the other parent is generally required. If a birth parent refuses to give consent to the adoption, then a court action to terminate parental rights is the only recourse a stepparent has.  

A stepparent may succeed with a termination of parental rights if:

  • The birth parent has ‘abandoned’ the child by not seeing or talking with them for more than a year without paying child support.
  • The birth parent was properly served with the adoption papers and does not show up in court to object to the adoption.
  • The judge decides that approving the adoption is in the best interests of the child.

If the whereabouts of the other birth parent are unknown, attempts must be made to locate and notify the person about the adoption. The California court system recommends using any of the following methods to try and locate a birth parent:

  • Send a certified letter to their last known address with the address correction requested
  • Contact all known persons who may have information about the birth parent
  • Search the internet and social media
  • Use a cell phone tracking app to track a last known cell number
  • Search online phone directories and other databases that focus on people-related information
  • Contact local government agencies in the last known area the birthparent resided – especially those that are known to have had contact with the parent.

Sincere efforts must be made to locate a birth parent, and all attempts need to be recorded by date and what was done to demonstrate to the court that all reasonable measures were taken. If a judge agrees that there is nothing more that can be done to locate a birth parent, the judge can approve the adoption. However, the attempts to locate the birth parent must be authentic because if the birth parent later appears and can disprove the attempts to be found, the legality of the adoption can be challenged. 

Why it is Important for a Stepparent to Adopt a Stepchild

Formal adoption is not necessary for a stepparent to be a loving parent to a stepchild. But there are sound reasons for making the relationship legal that benefit both a stepparent and a stepchild.

  • Recognition as a child’s legal parent – Adopting a stepchild gives a stepparent legal rights regarding access to the child and authority to make decisions on behalf of the child.
  • Minimizing disruptions by a difficult birth parent – Adopting a stepchild terminates the parental rights of a birth parent who might be uncooperative or unsupportive and would otherwise still have the authority to influence decisions affecting the child. 
  • Demonstrates a commitment to the child – Since adoption is voluntary, adopting a stepchild shows an intention to be the parent a child can count on no matter what and helps to establish stability and security in the child’s life. 

For a stepparent who wants to commit to a stepchild, adoption is necessary to make sure the relationship is protected by law. And while anyone can complete the paperwork and initiate the adoption process, it is a good idea to work with an attorney experienced in California adoptions to make sure everything required is done so that the adoption can be approved as quickly as possible.

Do you believe sole legal custody would be best for your kids?

On behalf of The Law Offices of Steven M. Bishop, Attorney at Law, A California Corporation on Friday, March 13, 2020.

Being a parent is one of the most challenging jobs a person can have. Though you love your children more than anything and would do anything for them, making certain decisions regarding their well-being can be difficult. For example, you may feel that seeking sole custody of the children in your divorce would be best for them, but it also means that they would have a weaker relationship with the other parent.

Of course, if you believe the other parent is unfit, you may not think that a weaker relationship with that parent will be detrimental to their overall well-being. Still, you know that seeking sole custody is not easy, especially when you want sole legal custody as well as sole physical custody.

Being the decision-maker

In most cases, even if a parent obtains sole physical custody as the outcome of child custody proceedings, both parents typically maintain legal custody, meaning that both parents can make important decisions for the children. However, if you believe that the other parent has poor decision-making abilities and makes choices that could harm the children or otherwise negatively affect their well-being, you may feel that seeking sole legal custody is in your children’s best interests.

This type of arrangement can have its benefits, such as keeping the children safe from dangerous or other unseemly behavior from the other parent. It could also make decision-making easier for you because you would not have to confer with the other parent before making a choice. Having one parent make consistent choices could also help the children maintain a sense of stability.

Double-edged sword

Of course, this type of arrangement can have its downsides too. For example, you may feel overwhelmed having to make all of the important decisions for your children on your own. The children may also experience feelings of strain because they only receive input from one parent and do not receive another perspective. Because the other parent does not have important decision-making abilities for the children, he or she may withdraw from the kids.

If you are considering sole legal custody, you may want to ensure that you thoroughly review this option. If you believe that allowing the other parent to make decisions for your children could put them in danger, you may want to determine your best options for presenting your case for sole legal custody to the court. Having a California family law attorney on your side during this endeavor may prove invaluable.

Self-care may prevent stress and anxiety during divorce

On behalf of The Law Offices of Steven M. Bishop, Attorney at Law, A California Corporation on Saturday, December 14, 2019.

During your marriage, you may have come to put others before yourself. You may have done your best to meet the needs of your spouse and your children, and though you likely took some time for yourself too, your main focus was on your loved ones. However, now that you are going through a divorce, you may need to turn the focus toward yourself.

Certainly, you want to make decisions that will not have negative impacts on your children, but taking care of your own well-being during this time is vital too. Divorce proceedings can quickly become overwhelming, and if you do not practice self-care, you could easily end up stressed out.

What can you do?

Self-care does not have to be anything extravagant. In your case, it may simply involve being conscious of your actions and the way you address your emotions during this time. Some ways you can help combat stress, depression and anxiety as you go through the marriage dissolution process include the following:

  • Eating right: You may be like many other California residents who are stress eaters. However, if you reach for the junk food often during your divorce, you may only feel worse, whereas eating healthy fruits and vegetables could boost your mood.
  • Having support: At times, you will undoubtedly want to talk about how you are feeling about your divorce. It is best to avoid having such discussions with your children, so you may want to reach out to close friends, family or even a therapist to work through your feelings.
  • Thinking about yourself: Because you may have considered your spouse before making many decisions while married, you may still find yourself wondering how he or she is feeling during this time. However, you may want to instead focus on your own feelings and efforts to move on.
  • Exercising: Getting physical exercise has numerous health benefits, including helping you feeling happier, and giving you a reason to get together with friends or to take a class to make new friends.

At first, focusing on yourself may seem foreign, but with time, you can find ways to help yourself through your divorce in a healthy way. Of course, in addition to having emotional support, you may also want to ensure that you have legal support as your case moves forward. Consulting with an attorney can allow you to better understand what you may face in the near future.

Gray divorce and the financial future of older divorcees

On behalf of The Law Offices of Steven M. Bishop, Attorney at Law, A California Corporation on Saturday, September 14, 2019.

Divorce will bring significant financial changes for both parties, particularly older adults. Gray divorce, which is divorce between two people age 50 and up, is on the rise, which means more people could be facing an uncertain financial future. Divorce later in life can leave a person with a precarious financial future, but there are ways a person can protect his or her interests.

One of the most critical issues in any gray divorce is the matter of retirement. If you are facing the prospect of ending your marriage while you are also coming upon your golden years, it is in your interests to know how you can still pursue a strong financial future. While your plans may have to change or you may have to adjust expectations, it is still possible to have security and stability long-term.

Important factors to consider

Often, people reach a point where they realize they still have a lot of life left in front of them, the children are grown and out of the house, and they want a fresh start. Longer life expectancy is likely one of the leading reasons why people are choosing gray divorce more often.

It’s normal to feel angry, scared and unsure during your divorce. However, allowing those feelings to determine how you make decisions will not lead to a final order that is fair and sustainable. When navigating a gray divorce, it is crucial for a person to consider how his or her choices will impact the future. In addition to your retirement savings, other important financial issues to consider during this time include:

  • Alimony – If you have a rightful claim to spousal support, you may want to make sure you get the full amount you need and deserve. You may also want to consider negotiating a lower amount of support in lieu of retirement savings or for another beneficial arrangement.
  • Property division – In addition to your retirement savings, you and your spouse will also have to decide what to do with the family home, assets, other accounts and a range of personal property.
  • Social security – It may also be possible to claim Social Security benefits from your spouse’s earnings. This will depend on how long you were married and other qualifications. 

The financial issues of a gray divorce are complicated. In order to secure terms that ensure your security and stability in the future, you may want to work with an experienced San Diego attorney who will advocate for your rights and interests.

What should you do if you suspect your spouse is hiding assets?

On behalf of The Law Offices of Steven M. Bishop, Attorney at Law, A California Corporation on Thursday, June 20, 2019.

Divorce is a financially complex process, even when the two parties are completely amicable and committed to resolving divorce disputes out of court. This process can be even more difficult when there is conflict over how to divide marital assets and money. This is a typical occurrence in divorces where there is a lot of money and valuable property on the line.

In high asset divorces, it is possible that one spouse could attempt to hide assets from the other. Sometimes, this is done out of revenge or the desire to keep more assets for himself or herself. Regardless of why this is happening, if you think your spouse is going to try to hide assets or is being dishonest in the divorce proceedings, you can fight back. There are steps you can take to locate assets and secure the information you need for a fair financial order.

Hide and seek in your divorce

It’s not always easy to know if your spouse is actually hiding assets or if you just suspect there is a problem. You have the right to a fair share of marital property and a reasonable share of any marital debt, and this may mean you have to look carefully at certain things and take specific steps to ensure that happens. Some things you can do when you suspect hidden assets include:

  • Carefully review all disclosures and financial documents – In a divorce, both sides must disclose financial information, such as financial records, bank statements and more.
  • Seek an involuntary disclosure – If there is a problem with the disclosures that your spouse gave you, you can request involuntary disclosures. This would compel a person to respond honestly with the right information.
  • Request a deposition – If necessary, your attorney can seek to have your spouse submit to a deposition. This means he or she would have to answer questions under oath.

Hidden bank accounts are some of the most common ways that a spouse may attempt to keep you from getting your rightful share of marital property. Hiding assets during a divorce is unacceptable, and you may want to speak to a California attorney about how you can protect your rights.

Your financial future is on the line in a divorce. It’s smart to be thoughtful and careful about the choices you make, as well as carefully reviewing all financial information your spouse gives you. With guidance, you can fight for final order that allows you to have stability and security for years to come.

Divorce mediation is not always successful

On behalf of The Law Offices of Steven M. Bishop, Attorney at Law, A California Corporation on Wednesday, March 20, 2019.

When you and your spouse decided to divorce, you may have had high hopes for a peaceful settlement. More couples are finding that alternative dispute resolution such as mediation leaves them with a more positive outcome since they work out an agreement together. In some cases, disputing couples develop better communication skills during mediation that allow them to interact more effectively after their divorce, especially in matters related to the children.

Unfortunately, this is not always the case. It is also common for negotiations to break down in California, especially if your mediator is poorly trained or inexperienced. If you head into negotiations without knowing what to expect, you may find yourself making little progress, and this can be frustrating.

Why is mediation stalling?

Each divorce has its own unique factors, so it is difficult to say how long mediation may take. Some couples may reach their agreements in one session while others may take several sessions, each lasting a few hours over the course of months. However, soon into the negotiations, you may be able to tell when things are going badly and that you may not have the civil and cooperative divorce for which you had hoped. Some signs that mediation is not working may include the following:

  • You are hours into your session and have not come to an agreement on a single issue.
  • You keep going around and around the same issues without reaching a conclusion.
  • The topic of discussion keeps going off track.
  • Your spouse is using the time to attack you or make accusations against you.
  • Your spouse wants to win instead of looking for ways to compromise.

You may be able to redirect the conversation simply by taking a break to calm down and refocus, or you may need to stop for the day and try again another time. As difficult as it may be to realize, if mediation is unsuccessful, you may end up with a judge making these delicate decisions for you. On the other hand, you should not allow that fear to cause you to make unwise sacrifices just for the sake of avoiding divorce court.

One way to improve the chances that you will not surrender important rights during your divorce is to approach it with a skilled attorney at your side. Whether you go through mediation or litigation, having legal advice can make a difference in the outcome. You can begin by reaching out for answers to your questions.

2019 spousal support tax change

On behalf of The Law Offices of Steven M. Bishop, Attorney at Law, A California Corporation on Monday, December 17, 2018.

As of January 1, spousal support will no longer be tax deductible

In divorce, spousal support is often a point of contention which takes time to negotiate. However, considering the changes in tax law taking effect the first day of 2019, time is of the essence if you want to use your spousal support payments as a tax deduction.

How the new tax laws will affect you after divorce

Spousal support payments will soon be drastically affected since new laws prohibit their deduction on your tax return. With changes to the law entering into the equation, your divorce may look a little different.

In the past, spousal support payments qualified as a tax deduction, often providing a substantial reduction in tax liability for you, as the payor. Your former spouse, on the receiving end, reported spousal support as income, thereby affecting his or her tax liability as well, though likely to a lesser degree.

However, without the ability to deduct spousal support payments, changes may include:

· You have increased tax liability and, therefore, reduced disposable income

· Your former spouse will likely receive less support

· More money could go to taxes than household expenses, potentially indirectly affecting your children

Though the anticipation is that middle-class families, especially the women, may experience the greatest difficulty with this change, it will affect all couples who divorce.

Compensating this new rule into your divorce

Agreements made after December 31, 2018 may result in a higher tax rate for you, as well as lower payments for your former spouse. As a result, it may be best for you, and for your family, to take a long look at how your taxes will be impacted once you finalize your divorce and begin spousal support.

Protecting your relationship with your beloved pet

By Steven Bishop of The Law Offices of Steven M. Bishop, Attorney at Law, A California Corporation on Wednesday, December 12, 2018.

Although those who are not “pet lovers” may scoff at the idea, many divorces involve the heartbreaking reality of deciding who gets the family dog, cat, or other pet. It is frequently just as painful as dealing with child custody issues but, until now, the Family Court system in California has treated pets as “property”. Consequently, if the parties cannot reach an agreement the Judge could only award the pet to one party or the other, without any consideration of the devastating impact it may have on the other person.

However, effective January 1, 2019 a Family Law Judge may now make orders which include a “sharing or visitation” arrangement for pets. The Court will determine which party has been primarily responsible for caring for the pet (feeding, vet appointments, etc) in determining “primary custody” but can award the other party shared custody or visitation privileges.

Certified Family Law Specialist Steven M. Bishop not only has over 40 years of experience helping clients navigate all the issues involved in a divorce, he is a devoted owner of Hamilton, a 4 year old Boston Terrier and Beagle mix (a Boogle) and he understands how attached people become to their pets.

Who makes important decisions for a child after divorce?

On behalf of The Law Offices of Steven M. Bishop, Attorney at Law, A California Corporation on Wednesday, September 26, 2018.

When parents are facing the prospect of divorce, they often wonder how their decision to move forward with this process will impact their child. As a California parent, you know you have custody rights and are entitled to access to your kid, but it is in your interests to fully understand how child custody works. There are different types of custody that can affect your role in the life of your child.

Legal custody refers to a parent’s right to make decisions for his or her child. This is separate from physical custody rights, which pertain to the actual time you will spend with your child. Whether you will fight for custody in court or you believe it is best to negotiate a settlement out of court, it is smart to think about how you should address the issue of legal custody as you pursue a beneficial custody order.

How legal custody will affect you

When you think about child custody, it is likely to first think about things like weekend visitation, holiday schedules and rotating parenting time with the other parent. However, legal custody can be just as important. Without legal custody, you may have regular access to your kid, but you will not have the right to make important choices on his or her behalf. Consider the following:

  • The parent with legal custody will be able to make decisions regarding education. This includes where a child will go to school, tutoring and more.
  • Legal custody allows a parent to decide about matters pertaining to religious upbringing, including service attendance and church activities.
  • When decisions regarding any type of medical care are necessary, the parent with legal custody will have the right to make that choice.

In some cases, parents share legal custody. Whether it is by court order or negotiated settlement, you and the other parent may work together to make important choices for your child. In other situations, it may be best for one parent to retain legal custody. 

Protecting your parental rights

You will find it beneficial to start with a complete evaluation of your case. This will allow you to pursue a final order that protects the best interests of your child and allows you to have a close relationship with him or her after the divorce is final. 

Before you make any decisions regarding your parental rights or child custody, it is helpful to learn more about legal custody and how you can intentionally seek to protect your vital role in the life of your kid.

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