July 17, 2009

San Jose Family Law Attorney Discusses the What Happens to the Children When a Parent Dies

San Jose Family Law Attorney Discusses the What Happens to the Children When a Parent Dies

With the death of Michael Jackson, and a potential custody battle arising between Katherine Jackson, the mother of Michael and Debbie Rowe, Jackson’s second wife and the biological mother of Prince Michael, 12, and Paris, 11, much talk has arisen about what happens when a custodial parent dies.

Generally, if a custodial parent dies while the child is a minor, the surviving parent would be entitled to sole legal custody. Other third parties such as aunts, uncles or grandparents may try to obtain custody of the child by filing an independent proceeding such as a guardianship, dependency or in the case of grandparents, a Petition for Grandparent Visitation. The other family members may be awarded custody if they can show that it would not be in the child’s best interest to be in the custody of the surviving parent and to do so would be detrimental to the child.

The same would still be true even if the deceased parent had sole legal and sole physical custody and had not even been involved with the child in the last few years. For instance, if Michael Jackson was awarded sole legal and sole physical custody (which he had not), Debbie Rowe would still have parental rights, unless all of her legal parental rights and responsibilities had been terminated. Since no such order existed, that is why Debbie Rowe still has standing to try and obtain custody of Prince Michael and Paris.

If a custodial parent dies and the other parent who has been absent from the child’s life all of a sudden takes interest in the child, one may question the surviving parent’s motivation. It may be that there is some remorse and regret for being absent and a renewed desire to provide and care for the child. In other cases, if there is a possibility of the deceased parent leaving a sizeable estate, money and greed may be a motivation. Such motivation has been speculated in the case of Debbie Rowe.

Here at Sagaria Law, we offer a full range of family law and legal services including divorce, paternity, adoption, child custody and visitation matters, child support, spousal support, alimony, juvenile dependency, domestic violence, division of property, grandparent visitation and custody, etc. We have seven Northern California locations including San Jose, San Francisco, Redwood City, Fremont, Salinas, Roseville and Sacramento. We offer a free thirty minute consultation, either in person at any of our offices, or over the phone. Call our offices today and we can connect you with an attorney immediately or we can schedule your free consultation with one of our family law attorneys: (408) 279-2288 or (800) 941-6730 or visit www.sagarialaw.com

October 22, 2008

San Jose Family Lawyer Discusses Grandparents’ Custody Rights

San Jose Family Lawyer Discusses Grandparents’ Custody Rights

In today’s fast moving age, many parents rely on grandparents to take care of their children as they are at work during the day. Therefore, many times, when the nuclear family breaks down it is the grandparents that step in to take control of the children’s best interests. But what kinds of rights do grandparents have in terms of visitation?

According to a child custody coach cited in Newsweek, while hearing a petition filed by grandparents for visitation rights, courts almost always consider the decision and wishes of the custodial parent. In the Supreme Court case Troxel v. Granville, 530 U.S. 57 (2000), the Court held that it is a fundamental liberty of parents to make decisions concerning their child’s custody. It includes the freedom to decide when and with whom minor children can spend their time, and applies to time spent with the grandparents. This means that no matter how involved the grandparent may be involved with their grandchildren, the decision for visitation is ultimately on the custodial parent.

The child custody coach advises any grandparent that has children who are in the midst of a divorce to be supportive of both of the parents of the grandchildren, including the ex-spouse. Handling visitation issues with grandparents is a lot easier when the law is not involved. Divorce is always hard, but if you are a grandparent and would like to have an impact on your grandchild, keeping the peace with both parties including the ex-spouse can only work in your favor.

Our team of experienced and talented family law attornneys handle all aspects of child custody, visitation and support cases, as well as all other family law cases. We have six Bay Area locations, including Redwood City, San Jose, Monterey, Salinas, Sacramento and Fremont. We offer a free consultation, either in person or over the phone. Call Sagaria Law today at 1-800-941-6730 to schedule your free consultation with an experienced Redwood City Family Law Attorney.

July 30, 2008

San Jose Family Law Attorney Discusses Grandparent Visitation

San Jose Family Law Attorney Discusses Grandparent Visitation

Are you a grandparent, and you don’t see your grandkids? Sadly, this happens all too often. Whether its because a parent dies, or the parents have divorced or separated, unfortunately, many grandparents end up not having any relationship with their grandchildren. Here in California, the law does offer you some protection and assistance. If you would like to speak with a San Jose Family Law Attorney about your rights, please call Sagaria Law today at 408.279.2288.

The California Family Code provides that a grandparent may petition the Court for visitation under the following circumstances:
• A parent is deceased. (Family Code 3102)
• A dissolution or other family law proceeding is pending in which child custody is already at issue. (Family Code 3103)
• The parents are not married to one another, including after a divorce. (Family Code 3104(b))
• The parents are married but are living separate and apart on a permanent or indefinite basis. (Family Code 3104(b))

All court ordered visitation is dependent on a finding of the court that visitation is in the child or children’s best interests.

Grandparents petitioning under Section 3103 should be aware that visitation awarded pursuant to this section ends when a judgment dissolving the marriage and awarding child custody is entered. Afterwards, grandparent visitation is governed by Section 3104.

Section 3104 requires the Court find that there is a preexisting bond between the child and the grandparent, and the visitation is in the child’s best interests. The Court must also balance the child’s interest in visitation against the parent’s right to exercise parental authority.

You may be wondering what about parental unfitness. What if my grandchild’s parent is a danger to the child? Or unfit to be a parent? Guardianship proceedings may be appropriate in that instance, or if the child is in danger, juvenile dependency. Generally, parental unfitness is not a significant issue in grandparent visitation, although it can come up.

If you are interested in obtaining visitation with your grandchild(ren), call our office today to set up your free consultation with an experienced San Jose Family Law Attorney. Our attorneys have experience in all types of family law cases, including child custody and divorce matters, as well as grandparent visitation, guardianship and dependency. We offer a free consultation in any of our five Bay Area offices, including Salinas, San Jose, Fremont, Monterey and Redwood City. You can also arrange for your consultation to be via phone if coming in to the office is inconvenient for you. Call today 408.279.2288 to schedule your free appointment.

October 8, 2007

How Far Do Grandparents' Rights Extend?

Do parents always have priority over grandparents? Our Santa Clara family attorneys, who have worked with many grandparents’ rights and child custody cases, have confronted custody struggles between parents and grandparents in numerous contexts, and a highly contentious child custody case that is currently unfolding in Huntingdon, Tennessee, indicates that there is not always an easy answer to this question. For the last year and a half, Mary Winkler’s children have lived with their father’s parents, and now Mary wants them back. She has served a small jail sentence, and is now free on probation.
Her jail sentence, however, was for shooting her husband to death with a shotgun that she does not remember pulling out of the bedroom closet.

Continue reading "How Far Do Grandparents' Rights Extend?" »

January 9, 2007

In 2007, New California Law Also Lets Grandparents File For Visitation If Grandchild Is Adopted By Stepparent

A new California law will let grandparents petition a court for visitation rights if their grandchild has been adopted by a stepparent. The law is based on Assembly Bill 2517 by Assemblyman Van Tran that was signed into approval by California Governor Arnold Schwarzenegger last August.

As with the already existing laws regarding grandparents’ rights in California, visitation would then be granted if a court found that maintaining the grandparent-grandchild relationship was in the grandchild’s best interests.

“When situations arise between adults, children are often the ones that lose; they have no rights when visitation issues occur with grandparents,” states Tran. “Children should be allowed to know and maintain loving relationships with their grandparents.”

According to AB2517, SECTION 1. Section 3104 of the California Family Code is amended to read:

3104. (a) On petition to the court by a grandparent of a minor child, the court may grant reasonable visitation rights to the grandparent if the court does both of the following:

Continue reading "In 2007, New California Law Also Lets Grandparents File For Visitation If Grandchild Is Adopted By Stepparent" »

November 3, 2006

For Grandparent Visitation, Three State Supreme Courts Say Yes

Recently, state supreme courts in Utah, Colorado, and Pennsylvania ruled in favor of a grandparent’s right to visit their grandchild.

These rulings indicate the recent shift taking place from six years ago when the U.S. Supreme Court, in Troxel v. Granville, curbed these rights in the state of Washington. The Court said that the visitation law was too broad for allowing “any person” to request visits at “any time.” The decision also solidified a parent’s right to decide who gets to visit with their children. Following the 2000 ruling, state courts seemed more likely than not to follow the Supreme Court’s lead.

Since this decision, grandparent visitation laws in many states have been revised, and state supreme courts have acknowledged and worked with these changes—especially in certain situations, such as the death of one of the parents.

· Utah case: Utah Supreme Court upheld the statute granting continued visitation. A 10-year-old girl whose mother died suddenly can keep visiting with her grandparents in spite of his father’s claim that the law violates his parental decision-making rights.

Continue reading "For Grandparent Visitation, Three State Supreme Courts Say Yes" »