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Grandparents can play a special role in the lives of their grandchildren.  In fact, the United States Supreme Court recognized this truth when confronted with the request by grandparents for more visitation with their deceased son’s daughters than the children’s mother would agree to:  “In an ideal world, parents might always seek to cultivate the bonds between grandparents and grandchildren. Needless to say, however, our world is far from perfect, and in it the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance.”

How a court handles a request by grandparents for visitation depends upon the circumstances of the case. Generally, as the Supreme Court noted, a child’s parents have the right to decide whether or not their child will see their grandparents. The law provides: “A fit parent has a federal due process constitutional right to make decisions concerning the care, custody and control of his or her child.”  But that right is not absolute. The court may grant grandparent visitation if it finds both a preexisting relationship and that grandparent visitation is in the best interests of the minor children.

First, it should be noted that in the event that the parents of the grandchildren don’t live together, either parent can allow the children to see their grandparents during their parenting time. For example, I represented a mother of two girls who had a Domestic Violence Restraining Order against the father. The father did not have any custodial time with his daughters. That father also did not have a good relationship with his own mother, but that paternal grandmother and the children’s mother got along well. In fact, that paternal grandmother was so supportive of her daughter-in-law and protective of her grandchildren that she financially supported her now ex daughter-in-law’s legal position to ensure the safety of her granddaughters.  So while the father did not have any parenting time, the paternal grandmother was able to spend time with the girls because they were with their mother and she consented. The lesson from that story is that a grandparent who has a good relationship with one parent, even if it is not with their child, does not need a court order to obtain visitation even if estranged from their own child. Any parent can grant that right.

When both of the children’s parents are alive, there is a rebuttable presumption against grandparents having visitation if both parents agree that the grandparent should not have visitation rights. In that situation, grandparents seeking visitation with their grandchildren would be required to prove that it is in the best interests of the children. Grandparents should be aware, however, that if they insert themselves into divorce proceedings, the court would then have jurisdiction to make orders regarding them, including ordering grandparents to pay support, such as the provision of basic expenses for the grandchild including medical expense or day care costs.

In instances where a grandparent seeks to obtain court orders for visitation when parents are living apart on a permanent basis or one parent is deceased, then an altogether different statute controls. In that situation, the grandparents need to persuade the court that there is a preexisting relationship between them and the grandchild that has engendered a bond such that visitation is in the best interest of the child. Moreover, the court also has to balance the interest of the child in having grandparent visitation against the right of the parent(s) to exercise their parental authority.  Case law that addresses grandparents requests does require the court to give deference to a fit sole surviving parent’s constitutional right to raise a child, so that a grandparent would have the burden to show by clear and convincing evidence that denial of the grandparent’s request would be detrimental to the grandchild.  In other words, a court would have to find that the evidence is so clear as to leave no substantial doubt about the detriment to the child if it denies the grandparent’s request.

In sum, if you are a grandparent who is thinking about pursuing your rights to visitation with a grandchild, you would be well served to consult competent legal counsel to understand your rights and potential risks before taking any action.

(This article appeared in the November 2024 issue of Living Brentwood)

When couples with children divorce, one of the most important issues that must be addressed is the custody of the children. Who will have the children and when?

While that question may be simple, it is often the most difficult to navigate, and there is not one right answer. If the parents have an amicable relationship, it is a much easier issue to resolve than when they are in high conflict. What may be an appropriate arrangement for a 15 year old is likely not an appropriate  arrangement for a 2 year old. What may work for a couple who now live a mile apart from one another may not work for a couple who plan to live 30 minutes or an hour away from each other. And of course, what if one parent wants or needs to move out of state?

California law provides that the public policy of the state is to ensure that the health, safety, and welfare of the children shall be the court’s primary concern in determining the best interests of children when making custody orders. The legislature has also declared that it is the public policy of California to ensure that children have frequent and continuing contact with both parents; however, that doesn’t mean that a court will necessarily order that parents will share custody equally.

When these two policies are in conflict, the court is required to prioritize the health, safety, and welfare of children. Ideally, parents should work together to reach an agreement about how they are going to share custody. A typical 50-50 parenting plan for school age children presuming the parents both live within reasonable proximity to one another and the child’s school, is to put in place a 2-2-5-5 schedule. That means in a typical week, one parent has the children on Monday and Tuesday, the other parent has the children on Wednesday and Thursday, and the parties alternate each week who has the children from Friday after school through Monday morning.

With this sort of a parenting plan everyone can plan their weeks ahead of time. For example, if mom has the children on Mondays and Tuesdays and dad has Wednesdays and Thursdays and the child takes piano lessons at mom’s house, everyone knows (the child, the parent, the piano teacher) that every Monday night, the piano teacher is at mom’s for the piano lesson. Similarly, if the child has soccer practice on Thursdays, then it will always fall to dad to take the child to soccer on Thursdays. It also makes it easier for parents to plan.

When going through a divorce it makes sense to consult counsel or a mental health professional with expertise in this area to help you work out an arrangement that suits your family. There are therapists with expertise in child development who can help figure out a suitable plan. A child’s developmental stage is important because, for example, a two year old shouldn’t be away from either parent for more than a few days since they don’t have the same capacity to remember people (including their parents) as a 9 year old.

Not only do folks have to work out their regular parenting plan, but they need to figure out how they are going to plan school breaks like Christmas, spring break, and summer vacation.

If you are getting divorced, obtain the advice of a professional to assist in navigating a parenting plan that makes sense for your entire family. If you and your former spouse are unable to work it out or resolve your differences in mediation, there is always the option of asking the court to make orders; however, then you are asking a stranger to decide what’s in your children’s best interests. Judges do have different views and perspectives, so when a court is asked to make orders, one never knows how it will turn out. Given the expense and uncertainty of litigation, it makes far more sense to come to some agreement, with the help of a skilled professional if need be, first!

(This article appeared in the July 2024 issue of Living Brentwood)