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LegalGems
LegalGems, Lawyer
Category: Family Law
Satisfied Customers: 8715
Experience:  Experienced Family Law Attorney
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I have legal guardianship through probate court grandson, 7.

Customer Question

I have legal guardianship through probate court for my grandson, 7. Guardianship was awarded to us when he was 3 years old. His parents were both in jail which is what compelled me to file for guardianship. Both parents have been in and out of jail/prison ever since. The mother filed for visitation through probate two years ago and the judge denied it, Now the mother just filed papers in family law court, basically side-stepping my guardianship and is going to the father for visitation, which he is against. He is in jail awaiting transfer to prison, and this week she is out of jail (which wasn't the case last week). Does guardianship through probate trump her seeking visitation through family law court?
Submitted: 1 year ago.
Category: Family Law
Expert:  LegalGems replied 1 year ago.

Thank you for your patience as I researched this for you. It will be a few more minutes please.

Expert:  LegalGems replied 1 year ago.

Please see the following probate code (explanation below):

2205. (a) Except as provided in Section 304 of the Welfare and Institutions Code, and subject to the provisions specified in subdivision (b), upon the filing of an order appointing a guardian of the person of a minor in a guardianship proceeding, including an order appointing a temporary guardian of the person of the minor, the court in the guardianship proceeding shall have exclusive jurisdiction to determine all issues of custody or visitation of the minor until the guardianship proceeding is terminated. (b) This section is subject to the provisions of Sections 1510 of this code, and 8714, 8714.5, and 8802 of the Family Code, relating to consolidation of guardianship and adoption proceedings and the court where the consolidated case is to be heard and decided.

So this code gives jurisdiction over all custody and visitation issues to the probate court; as such, the family court lacks jurisdiction. A motion to dismiss can be filed if the parent does file a visitation suit in family court.

That code is available here:http://www.leginfo.ca.gov/cgi-bin/displaycode?section=prob&group=02001-03000&file=2200-2205

Another option, if nothing has yet been filed, is to provide the above statute to the parent seeking visitation, along with a letter stating that the proper court is probate, and should the parent file improperly in family court, the guardian will request attorney fees and costs, in order to get a dismissal, pursuant to family code 271, below:

271. (a) Notwithstanding any other provision of this code, the court may base an award of attorney's fees and costs on the extent to which the conduct of each party or attorney furthers or frustrates the policy of the law to promote settlement of litigation and, where possible, to reduce the cost of litigation by encouraging cooperation between the parties and attorneys. An award of attorney's fees and costs pursuant to this section is in the nature of a sanction. In making an award pursuant to this section, the court shall take into consideration all evidence concerning the parties' incomes, assets, and liabilities. The court shall not impose a sanction pursuant to this section that imposes an unreasonable financial burden on the party against whom the sanction is imposed. In order to obtain an award under this section, the party requesting an award of attorney's fees and costs is not required to demonstrate any financial need for the award. (b) An award of attorney's fees and costs as a sanction pursuant to this section shall be imposed only after notice to the party against whom the sanction is proposed to be imposed and opportunity for that party to be heard. (c) An award of attorney's fees and costs as a sanction pursuant to this section is payable only from the property or income of the party against whom the sanction is imposed, except that the award may be against the sanctioned party's share of the community property.

I hope this information is helpful. Should you have other questions please post here and I will reply; otherwise kindly rate positively so the site credits me for assisting you; this does not result in further charges to the customer. Thank you.

Expert:  LegalGems replied 1 year ago.

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Here is a link to locate an attorney:
http://apps.americanbar.org/legalservices/findlegalhelp/home.cfm

Should you have further questions please post here to continue our dialogue. Otherwise,

kindly rate positively

as I am an individual contributor and rely on positive ratings to receive compensation for providing the requested information - this does not result in additional charges to the customer, but rather allows the site to credit my account a percentage to compensate me for my time.

THANK YOU!

Expert:  LegalGems replied 1 year ago.

Thank you for using JA!

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