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LegalGems
LegalGems, Lawyer
Category: Family Law
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Experience:  Experienced Family Law Attorney
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I need to get visitation rights 2 grandsons. Parents

Customer Question

I need to get visitation rights for my 2 grandsons. Parents are divorced and the problem parent (father) is biological to one and has guardianship of the other (thanks to me giving my consent). Recently my 18 year old granddaughter came to live with me after he didn't get his way and he is using that to hold the boys against me. He says they are over 12 and will stay loyal to him in court (only because he will tell them to do as he says or else). He has been very controlling and manipulating in all the years of the kids being with him. I just want to make sure the courts understand what pressure he is going to put on them in order to achieve his ultimate goal. I raised my oldest grandson for a a couple of years early in his life and they have been coming to my house in the beginning every weekend after the divorce every other weekend. I can not allow this to happen it would not be in their best interest. So what to do???
Submitted: 2 years ago.
Category: Family Law
Expert:  LegalGems replied 2 years ago.
Good Day! I'll do my best to assist you. Please remember: I only provide general information and a local attorney should always be consulted.
I am very sorry to hear this.
When parents are divorced, the courts do have jurisdiction to award grandparent visitation rights.
To give a grandparent reasonable visitation with a grandchild, the court has to:
Find that there was a pre-existing relationship between grandparent and grandchild that has “engendered a bond.” This means that there is such a bond between grandparent and grandchild that visitation is in best interest of the grandchild.
AND
Balance the best interest of the child in having visitation with a grandparent with the rights of the parents to make decisions about their child.
Relevant statute:
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:
(1) Finds that there is a preexisting relationship between the
grandparent and the grandchild that has engendered a bond such that
visitation is in the best interest of the child.
(2) Balances the interest of the child in having visitation with
the grandparent against the right of the parents to exercise their
parental authority.
(b) A petition for visitation under this section shall not be
filed while the natural or adoptive parents are married, unless one
or more of the following circumstances exist:
(1) The parents are currently living separately and apart on a
permanent or indefinite basis.
(2) One of the parents has been absent for more than one month
without the other spouse knowing the whereabouts of the absent
spouse.
(3) One of the parents joins in the petition with the
grandparents.
(4) The child is not residing with either parent.
(5) The child has been adopted by a stepparent.
(6) One of the parents is incarcerated or involuntarily
institutionalized.
At any time that a change of circumstances occurs such that none
of these circumstances exist, the parent or parents may move the
court to terminate grandparental visitation and the court shall grant
the termination.
(c) The petitioner shall give notice of the petition to each of
the parents of the child, any stepparent, and any person who has
physical custody of the child, by personal service pursuant to
Section 415.10 of the Code of Civil Procedure.
(d) If a protective order as defined in Section 6218 has been
directed to the grandparent during the pendency of the proceeding,
the court shall consider whether the best interest of the child
requires that any visitation by that grandparent should be denied.
(e) There is a rebuttable presumption that the visitation of a
grandparent is not in the best interest of a minor child if the
natural or adoptive parents agree that the grandparent should not be
granted visitation rights.
(f) There is a rebuttable presumption affecting the burden of
proof that the visitation of a grandparent is not in the best
interest of a minor child if the parent who has been awarded sole
legal and physical custody of the child in another proceeding, or the
parent with whom the child resides if there is currently no
operative custody order objects to visitation by the grandparent.
(g) Visitation rights may not be ordered under this section if
that would conflict with a right of custody or visitation of a birth
parent who is not a party to the proceeding.
(h) Visitation ordered pursuant to this section shall not create a
basis for or against a change of residence of the child, but shall
be one of the factors for the court to consider in ordering a change
of residence.
(i) When a court orders grandparental visitation pursuant to this
section, the court in its discretion may, based upon the relevant
circumstances of the case:
(1) Allocate the percentage of grandparental visitation between
the parents for purposes of the calculation of child support pursuant
to the statewide uniform guideline (Article 2 (commencing with
Section 4050) of Chapter 2 of Part 2 of Division 9).
(2) Notwithstanding Sections 3930 and 3951, order a parent or
grandparent to pay to the other, an amount for the support of the
child or grandchild. For purposes of this paragraph, "support" means
costs related to visitation such as any of the following:
(A) Transportation.
(B) Provision of basic expenses for the child or grandchild, such
as medical expenses, day care costs, and other necessities.
(j) As used in this section, "birth parent" means "birth parent"
as defined in Section 8512.
On Form FL-300, explain what type of visitation schedule you would like to have with your grandchildren and why. Make sure you answer the questions the judge must consider when deciding to give a grandparent visitation, like: what your relationship with your grandchildren is; why is in your grandchildren’s best interests to have visitation with you; and anything else you think is important for the judge to know about your relationship with your grandchildren.
http://www.courts.ca.gov/documents/fl300.pdf
http://www.courts.ca.gov/documents/fl300info.pdf
http://www.courts.ca.gov/documents/fl311.pdf
http://www.courts.ca.gov/documents/mc031.pdf
sample declaration : google "Santa barbara family law sample declaration" and there is a detailed sample of how to write a declaration, along with a sample written declaration.
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Expert:  LegalGems replied 2 years ago.
Here is a link to help locate an attorney:
www.findlegalhelp.org and http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm
Of course, should you have other questions please do not hesitate to post here.
If you found the information I provided useful, kindly rate positive as that is the only way the site is allowed to credit me so that I am compensated for the time I spent - which does not result in additional charges to the customer.
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