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Question

Mother filed for custody - court date is in December. Father is in Resident Rehab (mother knows this). We are the father's parents and want to know if we have any rights, specifically during his 30 black out (no visits) and if he has any rights to have visitation once he passes 30 days? Mother has not responded to our phone calls. The court is set up as a mediation in December

Submitted: 16 days and 14 hours ago.
Category: Legal
Value: $48
Status: CLOSED
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Posted by DCrane 16 days and 14 hours ago.

Info Request

in what state is the child located?

16 days and 14 hours ago.

Reply

California

Posted by DCrane 16 days and 14 hours ago.

Answer

CA recognizes grandparent visitation rights per section 3104 of the Family Code, whch provides:

 

(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 may 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.
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 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.

 

After your son's 30 days, his rights would be reinstated unless the court determines that it would be in the best interest of the child for his visitation/custody to be suspended pending re-evaluation at some point in the future.

16 days and 14 hours ago.

Reply

After his 30 days, he is still a resident, and only has 12 to 24 hours a week for visits of any kind. If he is not capable (being he is a resident in rehab) should we still file a petition for visitation rights to ensure that the father gets to see his daughter during those 12 to 24 hour periods?

Posted by DCrane 16 days and 14 hours ago.

Info Request

you could not file a petition on his behalf. To be clear, are you asking whether he can visitation with the child while in rehab?

16 days and 14 hours ago.

Reply

Yes. I am also worried that he won't be able to see his daughter until the mediation date set for December. I also, want to know if I can call the mother without jepeordizing the father and ask to see the baby once a week for a few hours during his 30 day black out. We are the baby's only link to her dad.

Accepted Answer

Unless there is a visitation order in place, the mother would not have to bring the child to the rehab facility to visit the child unless there is a court order for her to do so, which may not be granted because it could have a negative affect on the child. Even if there is a visitation order in place, it would likely require judicial intervention to compel the mother to bring the child to the father while he is in rehab.

 

You can however call the mother without jeopardizing the father and arrange to visit the child as grandparents. If the mother is unwilling, you can petition the court for visitation.

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Expert: DCrane
Pos. Feedback: 98.7 %
Accepts: 
Answered: 11/5/2009

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Negotiate, Draft, and Review many complex commercial agreements each year.

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