Articles Posted in Grandparent Visitation & Custody

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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.

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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.

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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:

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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.
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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:
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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.
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