Distinguishing Request for Custody from Request for Visitation

Grandparents’ and Nonparents’ Rights to Custody and Visitation

There are specific requirements which must be met in requesting custody that differ from those in requesting visitation.  Further, there are limitations as to whether a pending case in which custody of the child is or may be at issue must exist as opposed to filing an independent action for custody or visitation.  In simplest terms, the bar is higher for requesting custody than for requesting visitation.

Petitioning for custody generally requires a pending action in which custody of a minor child(ren) is or may be at issue. Grandparents and other nonparents may petition for joinder in the same lawsuit and be awarded custody of the child under certain circumstances.  However, where no case exists in which custody of the minor child is or may be an issue, generally neither a grandparent nor other nonparent may petition for custody by filing an independent action.  (The alternative is to petition the probate court for a guardianship – unless the juvenile court has jurisdiction of the child – where there is a basis for a guardianship.)

Likewise, grandparents and other nonparents may be awarded reasonable visitation in a pending family-court proceeding in which custody of the minor child is or may be an issue.  But generally only a grandparent can petition in an independent action for visitation.  A stepparent who is a party to the proceeding may be granted visitation if the visitation does not conflict with the custody or visitation rights of a birth parent who is not a party to the proceeding.  (Family Code sec. 3101.) 

Other nonparents normally cannot petition for visitation independently unless there is a statutory exception, such as one of the parents is deceased and the nonparent is one of the relatives specified in Family Code section 3102(a) (i.e., a deceased parent’s child(ren), sibling(s), or grandparent(s)).  Note that Family Code section 3102 does not apply if the minor child has been adopted by a person other than a stepparent or grandparent.  (Family Code sec. 3102(c).)

The judicial officer must join to the proceeding any person who the judicial officer discovers has physical custody of the minor child or who claims custody of or visitation rights with respect to a minor child of the marriage or domestic partnership, or to any minor child of the relationship.   (Cal.R.Ct. 5.24(e)(1).)  Joinder is not mandatory but discretionary if the judicial officer finds that it would be appropriate to determine the particular issue in the proceeding and that the person to be joined is either indispensable for the judicial officer to make an order about that issue or is necessary to the enforcement of any judgment rendered on that issue.  (Cal. Rule of Court 5.24(e)(2).)

The mechanics of joinder in a pending family court action are beyond the scope of this discussion. Joining a third party or a third-party request for joinder should be undertaken with the help of an attorney or the family law facilitator.

Grandparent and Other Nonparent Custody

Certain persons have preference when a judicial officer orders custody.   Family Code section 3040(a) gives preference as follows:  to the parents jointly; to one of the parents; if to neither parent , then to the person or persons in whose home the child has been living in a wholesome and stable environment; and, to any person or persons deemed by the judicial officer to be suitable and able to provide adequate and proper care and guidance for the child.

Grandparents and nonparents may gain custody of a minor child. There are two ways under this statute for a nonparent such as a grandparent to gain custody:  1)  if a nonparent can prove by clear and convincing evidence (see Rebuttable Presumptions and Standards of Proof) that custody to a parent would be detrimental to the child and custody to a nonparent is necessary to serve the best interests of the child; and, 2) if a nonparent can show by a preponderance of the evidence that the nonparty has taken care of the minor child’s emotional and physical needs as a parent on a daily basis for a substantial period of time and removing the child from that stable environment would harm the child, then the nonparty may be granted custody of the child, unless a parent can show by a preponderance of the evidence that custody to the parent would be in the best interest of the child.

According to Family Code section 3041:

A nonparent may petition the Superior Court for custody of a minor child.  However, if a parent objects to that nonparent having custody, the Court must determine that granting custody to a parent would be “detrimental to the child” and that granting custody to the nonparent is required to serve the best interest of the minor child.  (Family Code section 3041(a).)

The standard of proof in the determination that a parent’s custody would be detrimental to the child is by clear and convincing evidence.  (Family Code section 3041(b).) 

The phrase “‘detrimental to the child’ includes the harm of removal from a stable placement of a child with a person who has assumed , on a day-to-day basis, the role of his or her parent, fulfilling both the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time.  A finding of detriment does not require any finding of unfitness of the parents.”  (Family Code section 3041(c).)  

Even if clear and convincing evidence does not exist that parental custody is “detrimental to the child,” if the Court finds by a preponderance of the evidence that a nonparent meets the requirements of Family Code section 3041(c), then the finding must be construed as being in the best interest of the child and that parental custody would be detrimental to the child unless a parent can show the contrary by a preponderance of the evidence. (Family Code section 3041(d).)  

Grandparent and Other Nonparent Visitation

As mentioned above, grandparental visitation request can be made in a section 3102 proceeding (when there is a deceased parent).  It can also be requested under either Family Code sections 3103 or 3104, depending on the circumstances.

Grandparental visitation also can be requested under Family Code section 3103 when a parent is already a party to a Superior Court proceeding identified in Family Code section 3021 (i.e.,, a petition for exclusive custody, paternity, divorce, legal separation, nullity of marriage, or under the Domestic Violence Prevention Act, or by complaint filed by the Department of Child Support Services to determine custody and visitation).   In a section 3103 proceeding, grandparental visitation may be ordered if such visitation is in the best interest of the minor child.  However, if the parents agree that such visitation is not in the best interest of the minor child, the grandparent must prove by a preponderance of the evidence that the visitation would be in the child’s best interest.

A grandparent can bring an independent action for visitation in a section 3104 proceeding, if a parent is not a party to a proceeding identified at Family Code section 3021 and the parents are not married.  Or, if the parents are married, then a grandparent can bring an independent action for visitation if one or more of the following circumstances exist:

1. the natural or adoptive parents are separated and living apart on a permanent or indefinite basis;
2. one of the parents has been absent for more than a month without the other parent knowing the whereabouts of the absent parent;
3. one of the parents joins in the petition;
4. the child is not residing with either parent; or,
5. the child has been adopted by a stepparent.

If the grandparent is able to petition independently for visitation in a section 3104 proceeding, visitation may be awarded if the judicial officer:

1. determines there is a preexisting relationship between the grandparent and his or her grandchild producing a bond that would make visitation in the best interest of the child; and,
2. balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.

However, if the natural or adoptive parents agree visitation should not be granted, or a parent awarded sole legal and physical custody in some other proceeding objects, or if no order exists and a parent with whom the child resides objects, then the grandparent must prove by a preponderance of the evidence that the visitation is in the best interest of the minor child.

Generally, a nonparent (other than a grandparent or specific persons related to a deceased parent) may not bring an independent action for visitation.  (White v. Jacobs (1988).)   A request for such nonparent visitation must be made in the course of a proceeding in which custody otherwise is or may be at issue.  (Perry v. Super. Ct. (1980).)   Such nonparent visitation may be ordered only when there is clear and convincing evidence that denial of nonparent visitation would be detrimental to the child.  (Marriage of Gayden (1991).)

Grandparents’ Duty to Pay Child Support Different from Parents’ Duty to Pay Child Support

Under Family Code section 3930, a grandparent has no duty to support his or her grandchild regardless of who has custody of the child. However, a grandparent who is a party to a custody or visitation proceeding can be ordered to pay for a child’s court-appointed counsel, for another party’s attorney’s fees to defend on any issues involving the grandparent, and for costs related to visitation, but not for counseling costs for a grandchild. (Marriage of Perry (1998).) If the grandparent has custody, then the parents will generally pay support individually to the grandparent (if the grandparent requests it) according the California uniform guideline amount (or according to any mutually-agreed-upon amount if several conditions are met).  A grandparent cannot be ordered to pay California uniform guideline child support.

Under Family Code sections 3103(g)(2) and 3104(i)(2), the duty of a grandparent who has been awarded visitation to pay child support is different from that of the parents.  If a grandparent has been awarded visitation, the judicial officer may order the grandparent to pay for transportation costs, necessary expenses such as medical expenses, day-care costs, and other necessities, for the purpose of the visitation. The judicial officer may also allocate these costs between the parent(s) and the grandparent(s).

Attorney Fees

Under Family Code section 2030, in a divorce, annulment or legal-separation proceeding, any party (except a governmental entity) may be ordered to pay attorney fees to another party when reasonably necessary to provide financial parity between the parties.  However, grandparents and other nonparents paying attorney fees and costs are limited to an amount reasonably necessary to assert or defend the issues related to that party, not the entire proceeding. (Marriage of Perry (1998) 61 Cal.App.4th 295, 310.)

Financial parity takes into account the following factors:  the respective incomes and needs of the parties; and any factors affecting the parties’ respective abilities to pay. source

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