Level 1 - The Back-Up Plan... You think the Parents are doing what they're supposed to do. Or at least you don't think the situation is as dire as DHR or Child Services or some other Caring Relative who is operating at one of the different levels we'll discuss next might believe. Your position and maybe even your testimony would be something like, "I think the kids are fine, but if this Court disagrees then my place is sure better than Foster Care." It is no small gesture to even just offer yourself and your household as a resource for the family courts. Allowing the Court to see that the Parent or Parents you support have friends and family that love and support them and who believe they're doing the right things will be valuable for the Court to consider. Level 2 - Holding Down the Fort... At Level 2, things are a little more serious. You love and care for the Parents, but in spite of that or perhaps because of it, you are honest with the Parent and the Court that something has to be done, at least temporarily. Maybe it's not even something nefarious, maybe a Parent is suffering through an illness or a course of treatment for an injury that impedes their ability to care for a child on a day-to-day basis but everyone is on the same page that the Parent getting custody back is the game plan. Even if there have been poor decisions by a Parent or Parents, quite often those issues can be resolved in a reasonable amount of time if the Parent wants to put in the effort and receives the love, support and resources they need. In any case, you know that the Parent needs to raise this child in the long term, and you're not trying to start over after finally getting your empty nest back, so to speak. Level 3 - The Line in the Sand... This is the saddest level at which to operate, but it's also the most important. Maybe a Parent just can't kick the habit. Or you've been at Level 2 off and on for a few years and at some point it's just not fair to the child. Now, you've made the decision that the best thing for this child is to be permanently placed with you and the Parent(s) should simply have visitation on such a schedule and subject to such conditions as you or the Court see fit. There is no hard and fast rule about how many "chances" a parent should get or what kind of situation warrants a "one and done" kind of mentality, but we find that observing what someone's principles and priorities are, based on their behavior not their words, will go a long way towards giving you the insight you need to get clear on your position. You can also ask yourself a question like "if they were clean for 6 months, would I feel okay sending Junior home? a year?" If you don't feel like you'll ever really have peace about it, don't be afraid to make your position clear and let the Court make the ultimate decision if need be. You can operate at Level 3 and still be polite, respectful and loving to the Parents involved. How they respond to you is their business. You get what you tolerate in this life, and in certain circumstances, drawing the line in the sand is the only thing that can provide a child the support and stability they deserve. What Level Are You On? This is not a decision to make lightly, but the good news is that Child Custody is an ever-evolving situation. The decision to make here is more about the day-to-day decisions and legal strategy you'll need to pursue based on the circumstances rather than some lifelong decision you and the child are absolutely stuck with. If a family member is dealing with DHR or CPS or you would like to do something yourself for a child in need, PLEASE contact a qualified, experienced Child Custody lawyer. This is too important of a process to try to undertake yourself, especially in DHR cases. Thank you for reading. Thank you for your heart and your courage to step up and serve your family and the needs of a child. We wish you and yours all the best.
Best Interest of a Minor Child As you know, “best interest of a minor child” is the seminal phrase used and followed in determining and ensuring a child’s welfare is protected. It is a case-by-case analysis supported case laws and relevant facts of the case. Therefore, critical analysis of the law with the specific facts of the case is of utmost importance. Presenting it to the court (both in writing and orally) requires a focused understanding of the law. There are statutory conditions the court follows, including but not limited to: FC 3102 (b) states, “in granting visitation pursuant to FC 3102 other than a grandparent of the child, the court shall consider the amount of personal contact between the person and the child before the application for the visitation order.” Section 3104 (a) Section 3104 (a) specially addresses the rights of the grandparents to visitation. The court is given authority to allow grandparents to court ordered visitation if it determines both of the following: (1) find that a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child. (2) Balances the interest of the child in having visitation with the grandparents against the right of the parents to exercise their parental authority. Section 3104 (b) However, Section 3104 (b) states in full, “A petition for grandparent visitation shall not be filed while the natural or adoptive parents are married, unless one or more of the following circumstances exist: (1) the parents are currently living separately and apart on a permanent basis. (2) one of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse. (3) one of the parents joins in the petition with the grandparents. (4) the child is not residing with either parent. (5) the child has been adopted by a stepparent (6) one of the parents is incarcerated or involuntarily institutionalized.”
Person with a Legitimate Interest As a prerequisite to being able to obtain custody rights to a child as 3rd party you must first show that the person petitioning is a "person with a legitimate interest" as defined by the Virginia Code. There are two ways to satisfy this requirement. First, a blood relative meets this requirement. Second, if the 3rd party's relationship with the child reaches the level that the law would consider, then they would qualify as person with a legitimate interest under the law. Legal Standard In normal child custody cases, the court must decide what custody or visitation arrangement is in the child's best interest. In 3rd party cases, the petitioner must show that granting them custody rights was proven by "clear and convincing evidence" that such rights are in the child's best interest. Methods to Prove Clear and Convincing Evidence There are 5 ways that have been recognized by Virginia Law that a 3rd party can obtain custody rights to child. The most popular and seen method is showing that parents are "unfit." For visitation cases, the 3rd party petitioner must show that unless visitation is granted, "actual harm" will result. The only real way of accomplishing this is professional expert testimony from a Licensed Clinical Social Worker, (LCSW), Therapist, or child psychologist or psychiatrist. Absent this testimony, this is basically impossible. Summary Virginia protects the primacy of parents rights against 3rd parties. To obtain rights as a 3rd party it is very difficult. It can be done, but there must be very specific sets of circumstances and a very good attorney by the petitioner's side.
Legal Rights of Grandparents on Grandchildren After Divorce in California Legally, in California, you cannot be denied the right to visit your grandchildren, even if the parents are divorced and the family situation has undergone changes. California family law dictates that grandparents cannot be cut off from their grandkids if the parents are divorced or estranged. Irrespective of whom the grandkids are with, grandparents have the right to visit and spend time with their grandkids. These rights are called reasonable visitation rights under California law. Note that grandparents cannot legally request visitation rights if the parents are happily married and living together with the kids. These rights are only applicable under certain conditions and exceptions to the rule of the parents being married: *The parents are divorced or estranged and the grandkids are living with one of the parents. *One of the parents has been missing for at least a month before the request for visitation rights. *The kids live with a third party and not the parents at the time of filing the request for visitation. *One of the parents is deceased and the grandkids are living with the surviving parent. Conditions for Granting of Visitation Rights to Grandparents Even if the conditions mentioned above are met at the time of filing a request for visitation, there are a few other conditions that must be met for grandparents to be awarded visitation rights: 1. Pre-existing relationship with the grandchildren: Grandparents have to establish that they have spent time with the kids before the divorce and have a close relationship with the kids. In cases where the parents are contesting such a request, the grandparents may have to prove that a relationship exists with the grandkids and that their presence in the kids* lives is necessary. 2. No history of physical or sexual abuse and neglect: The grandparents must not have any recorded history of sexual abuse or physical assault and abuse against their own family or anyone else. Existence of such records will lower the chances of getting visitation rights. They should also not have any record of neglect against their own children when younger to ensure that the grandkids are in safe hands. 3. No record of drug and alcohol abuse: The grandparents should not be current or past abusers of drugs and alcohol. If they have been addicted to any kind of drugs or alcohol in the past or are proven to have a substance abuse problem when they apply for visitation rights, their request will be denied unless there is strong evidence proving otherwise. This is done to ensure safety of the grandkids. 4. Children*s preferences and well-being: Before granting visitation rights, most courts will allow the children in question to voice their opinions and preferences. If the children wish to meet the grandparents and are happy to spend time with their grandparents, then visitation rights may be granted. Only if the court is sufficiently convinced that all these conditions have been met at the time of filing the request for visitation will visitation right be granted. Once granted, grandparents must be careful to adhere to the rules of the rights granted to them. It is important to understand the laws governing the visitation rights of grandparents and to seek the right legal counsel when filing a request for such rights in court. Doing so will ensure that you have a strong case to make and will increase the chanced of you being awarded visitation rights.
When Can A Grandparent Petition For Visitation Rights? Child visitation rights are usually used in cases when a parent does not have custody over his or her child. Fortunately, getting a court to order grandparents' visitation rights with their grandchildren is not a long, drawn out process. A grandparent can petition for visitation rights under the following circumstances: 1. The grandchild does not resides with either of the parents 2. A parent has been absent for a month or so without any indication of his or her whereabouts 3. If the parents are living separately after being married In order for visitation rights to be granted, either one or both parents have to support the petition. If both parents are against the petition, then the grandparents will have to present persuasive evidence that their visitation is in the best interests of their grandchild. In order to grant the petition for a grandparent's visitation rights, the court must do the following: 1. Establish that there is indeed a relationship between the grandparent and the child and that the visitation will benefit the child 2. Establish a balance between the best interests of the child and the rights of parents to raise their child. This is done if the parents of the child are not married and are living separately The parents of the child have the right to request that the Court terminate the visitation rights of a grandparent if the situations under which the visitation rights were granted in the first place have changed. In addition, California law states several situations that a court must consider before it makes the decision to grant visitation rights to a child. Filing A Petition For Grandparents' Visitation Rights In most cases, a petition for visitation rights has to be filed from scratch, and include the following steps: 1. In case there is an active Family Law case, the grandparent must first join the case. The family law case can be a legal separation in which the children are involved as well 2. Once the case has been started, there are several court forms that need to be filled for the case to proceed. The grandparent must explain how he or she would like the visitation schedule to be planned, and state the reasons why the grandparent thinks that visitation is necessary. Keep in mind the questions a judge is likely to ask, and answer accordingly 3. Make sure that your answer includes a description of your relationship with your grandchild and anything else a judge might need to know to make a fair decision 4. Once you fill out the form, the next step is to get them reviewed. Usually the Court's facilitator reviews the paperwork. Once the forms have been filled out properly then you can proceed with the case. Make sure that you have filled out all the necessary forms 5. All of the forms should be photocopied. The grandparent must possess a copy of the forms, and each parent must possess one copy as well. The originals and the copies should be submitted to the court clerk. The originals will be retained, and the copies will be stamped as 'Filed' and returned to you. A filing fee needs to be paid as well 6. After filing the forms, the court clerk is likely to provide a court date 7. Once the necessary documents are filed, you are required to serve a notice to the parents of the child. In this way, you are legally letting the parents know that you have filed a petition for visitation rights 8. In the last and final step, all parties involved in the case are required to attend the court hearing on the specified date
Q: My child is living with my parents while I am getting my life in order. Do I still have rights? A: Yes. You can grant different types of custody to your parents: legal custody (rights to the care and control of your child) or temporary custody (the temporary right to have physical care and control of the child). You can also grant joint custody rights (in which case, you both share care and control) or visitation rights to your parents. In Ohio, giving a grandparent temporary custody does not mean that you have given up your full parental rights, even if you file the agreement in court. However, if your parents file for custody of your child and you did not visit or maintain contact with your child for 90 or more days, then the court may determine that you have abandoned your child and could decide that you are an unsuitable parent. If that happens, the court would likely determine that it is in your child's best interest for your parents to have full legal custody. Should this happen, you could file for custody again once you show that there has been a change of circumstances and that it is in your child's best interest for you to regain custody. Q: I financially support my grandchild. Can I get custody? A: In order for you to get custody, a court must first find that the parent is unsuitable. Unsuitability is determined on a case-by-case basis. The fact that you are better off financially or live in a better school district than the parent is not enough to show that the parent is unsuitable. However, if the court finds that the parent is unsuitable, then the court will likely determine that it is in the child's best interest for you to have custody. Q: I don't agree with the way my daughter is raising her child. Is that enough to show unsuitability A: No. Courts have explicitly held that mere character or moral weakness of the parent is not enough to show unsuitability. There must also be evidence of some detriment to or negative effect upon the child.
Establishing Third Party Rights in Arizona In order to file for third-party legal decision-making rights, a court must find all of the following: 1) you are acting like the child's parent; 2) it would be significantly detrimental to the child to remain or be placed in the care of either legal parent; 3) a legal decision-making or parenting time order has not been entered in the last year, unless there is reason to believe that child is seriously endangered; and, 4) one of the following is true: a parent is deceased; the child's parents are not married; or, a divorce proceeding is pending. The standards for visitation are less stringent than the standards for legal decision-making. In order to file for third-party visitation, a court must find: 1) a parent is deceased; 2) the child was born out of wedlock and the parents are not married; 3) for grandparents, the parents have been divorced for three months or more; or, 4) for in loco parentis, a divorce is pending. How Does the Court Determine Who Should Get to Have Rights? In determining third-party rights, the court is going to place heavy weight on the parents' opinion of who should have access to their child. The court will also look examine the following factors: o The relationship between the person seeking third party rights and the child. o The motivation for why you are seeking third party rights. o The motivation for why a parent is objecting to visitation. o The quantity and impact of visitation. o If a parent is deceased, the benefit of maintaining an extended family relationship. All of these factors will be examined in light of what is the in the best interest of the child. Courts start with the presumption that the legal parent is the correct party to have legal decision-making and parenting time rights. The party seeking third-party rights has a very high burden of clear and convincing evidence to rebut the presumption that awarding the legal parents the rights is not consistent with the child's best interest. The court definitely prefers not to interfere with legal parents' rights to their children by granting rights to a third party.
Stuard v. Stuard Recently, the California courts have given grandparents and great grandparents even more hope for gaining visitation with their grandchildren with the newly published California Court of Appeal, Third District, decision in Stuard v. Stuard. The Stuard decision stated: "It is common knowledge that children who have strong loving adults in their lives thrive. These relationships become even more vital during times when families are dissolving and changing." The Stuard court found that it was in the best interests of the child to preserve an important and continuing relationship with the child's grandparents. Family Code section 3104 The Stuard case specifically addressed California Family Code Section 3104, which states that a grandparent can ask the court for reasonable visitation with a grandchild. Under that specific section, to give a grandparent reasonable visitation with a grandchild, the court has to: (1) Find that there was 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 the best interest of the grandchild. The court must also: (2) Balance the best interest of the child in having visitation with a grandparent with the rights of the parents to make decisions about their child. California Family Code sections 3100-3105 address a grandparent's rights to visitation and the situations the court must consider before granting visitation. Court Forms and Resources In Orange County and Riverside County, as well as other counties, there are specific local forms one must file for visitation. In some California counties, an "Order to Show Cause" (OSC) or "Notice of Motion" may be filed with a proposed visitation schedule. Legal Disclaimer This legal guide should not be construed as formal legal advice or the formation of a lawyer/client relationship. Obtain legal advice from a lawyer if you think you may have a case for grandparent visitation.
In general, in Florida, grandparents do not have rights of custody and visitation to minor children. Those rights are reserved exclusively to the parents of the children. As such, if a grandparent is to spend time with the child, they are going to have to do that by piggybacking upon the rights provided to their children during the dissolution of marriage action. Now, there are certain exceptions to that. Exception number one is when both parents agree. Another exception might be where one or both of the parents has been found to be an unfit parent and thus grandparents are rewarded rights based upon the concept that somebody needs to take care of the children when the parents are unfit to do so. Please understand, the concept of an unfit parent is a very high bar in Florida. It is not typical.
What If I Used to Be My Grandchild's Legal Guardian? A child has a fundamental right to maintain a healthy, stable relationship with a person who has filled a significant, judicially approved parental role. The court may therefore grant reasonable visitation rights to a grandparent or other individual who was a child's former legal guardian if such visitation is determined to be in the child's best interest. Where no court order exists granting or denying visitation between a former legal guardian and his or her former minor ward, and where no dependency proceeding is pending, a former legal guardian may file an action for visitation (please see following section). If neither of the child's parents is living, the former guardian must initiate a guardianship proceeding for this purpose. How Important Are My Grandchild's Parents' Wishes? The Supreme Court has consistently held that parents possess a fundamental right to raise their children as they see fit. The presumption is that a fit parent acts in the best interest of his or her child. Numerous Supreme Court rulings permit the government to interfere with the right of parents to rear their children only to prevent harm or potential harm to the child. The California Legislature has determined, for example, that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the child. Unless the grandparents or someone else can demonstrate the existence of either harm or potential harm, parents have a fundamental right to make decisions concerning the care, custody, and control of their children. Grandparents have no corresponding legal right to visit or make decisions for their grandchildren; these rights belong only to the parents. Which forms must I file to assert my rights? In Orange County a grandparent must file Form L-0373, Petition for Grandparent Visitation. Other forms required in California are the following: o FL-300, Request for Order; o FL-311, Child Custody and Visitation Application Attachment; o MC-031, Attached Declaration; o FL-320, Responsive Declaration to Request for Order; o FL-340, Findings and Order After Hearing.
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