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Brandon M.
Brandon M., Family Law Attorney
Category: Family Law
Satisfied Customers: 12620
Experience:  Attorney experienced in all aspects of family law
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california law. i am a grandparent that has spent more time

Customer Question

california law. i am a grandparent that has spent more time taking care of my 3 year old grandson than both parents combined. He basically has lived with me most of his life. I retired from my job to send more time with him. I love being with him. my daughter has had primary custody of my grandson and the father visits every other weekend. last week my daughter had a drug overdose and the court gave custody to the father. mom is in a live in residential treatment program now for one month. We are to see the child once a week. but dad is a convicted felon, for growing marijuana, a registered narcotics offender and abused my daughter many times. I miss my grandson and am worried about him. I would like to try to ask the court to give me temporary or permanent custody until the mom and dad straighten out. the next hearing is set for august 23, 2011. I am an attorney but need help in the family law field. Can I get full or partial custody of my grandson? Can i join in the family law case thats between the mother and father? or do i need to file a new action like a guardianship/conservator action? and if the answer is yes what forms do i need to fill out? please help
Submitted: 6 years ago.
Category: Family Law
Expert:  Brandon M. replied 6 years ago.
Hello there:

Since you are licensed in this state, I will take a few communication liberties; I understand that this is not your area of practice, so please let me know if I use any legalspeak with which you are unfamiliar.

To start, there is normally no reason why a grandparent who has been so active in their grandchild's life couldn't be eligible for visitation pursuant to Fam.Code 3102. It would not be "custody"; instead it would be visitation. It would also be a slam-dunk in most cases.

You could also seek custody through a probate guardianship. There are two reasons why (based on the very limited information provided) someone in your position might be a good candidate for appointment. First, guardianships may be awarded when the child's parents are unable or unwilling to provide for the emotional, psychological, and development needs of the child. Secondly, when you have someone who has essentially assumed the role of a de facto parent---providing for the physiological and psychological needs of the child--there is actually a legal presumption that a guardianship is appropriate, regardless of whether the parents are able and willing. A guardianship, as you are probably aware, awards physical and legal custody to a non-parent.

There are likely going to be local forms with whichever approach you take. I may not be able to help you with the local forms and would direct you to go through the local courthouse website or a local attorney for that information. I can help you with the judicial council forms if you so request (and let me know which approach you wish to take), and you can also collect the forms that you need through the clerk of the respective divisions in your courthouse; if you request a "custody packet" from the family court division or a "guardianship packet" from the probate division, they will give you the basic forms needed and (usually) some simple instructions.

I understand that you may have follow-up questions. Let me know if further clarification is needed. Thank you.
Customer: replied 6 years ago.
Relist: Answer quality.
i need an attorney licensed in california. answer given was too general. i need more specific information. was the attorney i received the answer from a california attorney?
Expert:  Brandon M. replied 6 years ago.
I am licensed and practicing in California. However, I'm not sure where the perceived deficiency is. You asked three questions: "Can I get full or partial custody of my grandson? Can i join in the family law case thats between the mother and father? or do i need to file a new action like a guardianship/conservator action? and if the answer is yes what forms do i need to fill out?" I answered the first two and offered to specify which course of action you wished to take to provide you with a specific answer to the third. I am obviously not in a position to write a brief for you, but if you would like to tell me your specific inquiry, I would be glad to elaborate. Take your time. Thanks.
Brandon M. and other Family Law Specialists are ready to help you
Customer: replied 6 years ago.
you referred to family code section 3102 but does that not refer to a dead parent? it looks like 3103 is the relevant section, is it not? please help me with the judicial council forms i need file to join in the action. Can i join in the action to get visitation? a new action does not have to be filed correct? please answer and i will gladly accept your answer so you can get paid.
Expert:  Brandon M. replied 6 years ago.
Yes, 3103 is clearly the intended code section. My apologies on that.

The judicial counsel forms needed depend on whether you are pursuing visitation through the family courts or guardianship through the probate courts. It seems to me that your thinking is that the child's interests would be best served by filing for guardianship, but I don't want to make any assumptions in that regard. Do you know which course you wish to pursue? If not, I'm glad to help you reach that decision.
Customer: replied 6 years ago.
both if possible. since the family law court action has already been filed and a court date is set for aug. 23, the osc, it would seem like this is the fastest course of action. i would like the judicial council form #s for this only. if i do not like the result i would then like to file a guardianship action. i guess its like "forum shopping" but not really. i just want immediate action. i can find the forms for guard. on my own. thank you.
Expert:  Brandon M. replied 6 years ago.
It's not at all forum shopping. It's options shopping :)

I am attempting to provide you links to fillable forms, so I apologize for the delay. An answer is forthcoming.
Expert:  Brandon M. replied 6 years ago.
Minimum Judicial Council Forms needed for a grandparent to request grandchild visitation pursuant to Cal.Fam.Code sec. 3103:

FL-301 or FL-300

As I mentioned, it is not uncommon for the county's superior court to have one or perhaps two applicable local forms as well.

If the child is not a product of the parents' marriage, I would need to know that as well. Thanks.
Customer: replied 6 years ago.
action started as dom. viol rest order. parents have never been married.osc was filed because of drug overdose. emerg temp order was given for dad to have custody.
Expert:  Brandon M. replied 6 years ago.
Now that's interesting. Do we know if a petition for custody and support of the minor child (FL-260) was ever filed, or a petition to establish parental relationship (FL-200)?
Customer: replied 6 years ago.
none was filed but custody, visitation and support orders were made as part of the dom. violence case, the case i want to join in. does it matter at this point? My daughter is not questioning paternity.
Expert:  Brandon M. replied 6 years ago.
Hello again:

I apologize for the delay in this posting. I checked back after my last post, but I did not see a response at that time.

It does make a difference if the parties were never married. The difference is not with the legal standing of the grandparent, but the applicability of the judicial council forms involved. In short, the judicial council (for reasons not entirely clear to me) designed the joinder petition to apply to matters of divorce, legal separation, or annulment only, so it would only be proper in issues of child custody where the parents are or were married.

When the status of the parents' marriage is not an issue, there is no statewide form. Some counties have a local form (I would be happy to navigate this with you if you tell me in which county the action is pending), but for others the petition would have to be filed on court pleading paper.

Let me know if further clarification is needed. Thank you.