Ok, thanks. The father is under no obligation to move to Nebraska if he does not want to, despite his verbal agreement to do so. It is his choice to live where he wants to with his child as his rights as a parent are superior to all others. If you want to seek custody of the child, you will have an uphill battle.
In custody battles between a child's parents and grandparents, courts usually base their decision on two basic doctrines:
- "Best interests of the child" doctrine: According to this doctrine, custody should be awarded in accordance with the best interests of the child. Custody depends on what is right for the child.
- "Parental rights" doctrine: This doctrine presumes that the child's best interests lie in being raised by his or her biological parents. This is one of the biggest barriers a grandparent has to overcome in custody disputes with a child's parents.
States differ in their application of the "parental rights" doctrine. Grandparents can usually overcome the "parental rights" doctrine if they can prove that the parents are "unfit." However, the definition of "unfit" varies by state. Generally, parents who have been abusive or neglectful are "unfit." A parent who has a mental disorder or addiction may also be "unfit."
States also differ in their application of the "best interests of the child" doctrine. Some states have statutes that provide a list of factors that courts should consider when determining what is in the child's best interests. Other states have identified factors in custody and visitation cases for determining a child's best interests. Common factors for determining a child's best interest include the following:
- The love, affection, and emotional ties between the child and the parties seeking custody
- The ability of the parties seeking custody to provide a safe home and food, clothing, and medical care
- The mental and physical health needs of the child
- The mental and physical health of the parties seeking custody
- The presence of domestic violence in the home
- The preference of the child
So unless you can show the father is unfit, there is little chance the court will remove the child from the father's care especially after losing her mother. YOur rights as a grandparent are more firmly rooted in the right to have visitation.
In California a grandparent may ask the court for reasonable visitation with a grandchild. In order to do this there are several requirements which must be met:
First, there must be a pre-existing relationship between the grandparent and the grandchild(ren). This means that the grandparent must have been involved one way or another in the child's life on a regular basis usually within 6 months of bringing the complaint for visitation. Involvement in the child's life could be such things as the child living in your home for several months or longer, taking the child to school every day for the last school year, or watching the child while the parent(s) work. The court will determine if it is in the child's best interest in having visitation vs. the rights of the parents to make decisions about their child.
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