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Where a parent is already a party to a custody proceeding in the family court involving the minor child, grandparents and other nonparents may petition for joinder in the same lawsuit and be awarded custody of the child under certain circumstances.  When neither parent is already a party to a family court proceeding in which custody of the minor child is an issue, then a nonparent generally petitions the probate court for a guardianship (unless the juvenile court has jurisdiction of the child). 

Further, grandparents may petition for joinder and be awarded reasonable visitation in a family court proceeding in which a parent is a party and custody of the minor child is an issue, or in an independent family court proceeding (joinder being unnecessary) if a parent is not a party to a proceeding involving the minor child’s custody. 

At least with respect to any “minor child of the marriage,”  the Court must join any person that the Court discovers has physical custody of the minor child or claims custody of or visitation rights with the minor child.   (Cal. Rule of Court 5.158(a)).  Where the minor child is other than a “minor child of the marriage,” e.g., when the child is the subject of a custody or visitation dispute in a paternity action, joinder is not mandatory but discretionary.  (Cal. Rule of Court 5.158(b)).

The mechanics of joinder are beyond the scope of this discussion.  Joining a third party or a third party seeking joinder is somewhat complex procedurally and is best left to an attorney. 

Grandparent or Other Nonparent Seeking Custody

Family Code section 3041 controls how nonparents may gain custody of a minor child.  To put it mildly, it is a confusing statute.  Suffice it to say that there are two ways under this statute for a nonparent such as a grandparent to gain custody:  1)  if a nonparent can prove by clear and convincing evidence (see page entitled “Standards of Proof”) that custody to a parent would be detrimental to the child and custody to a nonparent is necessary to serve the best interests of the child; and, 2) if a nonparent can show by a preponderance of the evidence that the nonparty has taken care of the minor child’s emotional and physical needs as a parent on a daily basis for a substantial period of time and removing the child from that stable environment would harm the child, then the nonparty may be granted custody of the child, unless a parent can show by a preponderance of the evidence that custody to the parent would be in the best interest of the child.  

According to Family Code section 3041:

  • a nonparent may petition the Superior Court for custody of a minor child.  However, if a parent objects to a nonparent having custody, the Court must determine that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the minor child.  (Family Code section 3041(a).)  
  • the standard of proof in the determination that a parent’s custody would be detrimental to the child is by clear and convincing evidence.  (Family Code section 3041(b).) 
  • the phrase “‘detrimental to the child’ includes the harm of removal from a stable placement of a child with a person who has assumed , on a day-to-day basis, the role of his or her parent, fulfilling both the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time.  A finding of detriment does not require any finding of unfitness of the parents.”  (Family Code section 3041(c).)
  • even if clear and convincing evidence does not exist that parental custody is detrimental to the child, if the Court finds by a preponderance of the evidence that a nonparent meets the requirements of Family Code section 3041(c), then the finding must be construed as being in the best interest of the child and that parental custody would be detrimental to the child unless a parent can show the contrary by a preponderance of the evidence.  (Family Code section 3041(d).)   

Grandparental Visitation

Where a parent is already a party to a Superior Court proceeding which is identified in Family Code section 3021 (e.g., a petition for exclusive custody, paternity, divorce, legal separation, nullity of marriage, or under the Domestic Violence Prevention Act, or by complaint filed by the Department of Child Support Services), grandparental visitation may be ordered or a grandparent may request visitation by joining in that matter and being awarded visitation, if it is in the best interest of the minor child.  (Family Code section 3103.)  However, if the parents agree that such visitation is not in the best interest of the minor child, the grandparent must prove by a preponderance of the evidence that the visitation would be in the child’s best interest.

If a parent is not a party to a proceeding identified at Family Code section 3021, a grandparent may independently petition for visitation if the parents are not married.  (Family Code section 3104(a).)  If the parents are married, a grandparent may petition for visitation independently if one or more of the following circumstances exist:

  • the natural or adoptive parents are separated and living apart on a permanent or indefinite basis;
  • one of the parents has been absent for more than a month without the other parent knowing the whereabouts of the absent spouse;
  • one of the parents joins in the petition;
  • the child is not residing with either parent; or,
  • the child has been adopted by a stepparent.  (Family Code section 3104(b).)

If the grandparent is able to petition for visitation under Family Code section 3104, visitation may be awarded if the Court:

  • determines there is a preexisting relationship between the grandparent and his or her grandchild producing a bond that would make visitation in the best interest of the child; and,
  • balances the interests of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.

However, if the natural or adoptive parents object to the visitation, a parent awarded sole legal and physical custody in some other proceeding objects, or if no order exists if a parent with whom the child resides objects, then the grandparent must prove by a preponderance of the evidence that the visitation is in the best interest of the minor child.

Grandparent’s Duty of Support

Under Family Code section 3930, a grandparent has no duty to support his or her grandchild regardless of who is has custody of the child.  If the grandparent has custody, then the parents must pay support individually to the grandparent (if the grandparent requests it) according the uniform guideline amount (or according to any stipulated amount if several conditions are met).

Under Family Code section 3103(g)(2), if a grandparent does not have custody but he or she is awarded visitation, the Superior Court does have the authority to order the grandparent to pay transportation costs and necessary expenses such as medical expenses, day care costs, and other necessities.

Attorney Fees

Under Family Code section 2030, in a divorce, annulment or legal-separation proceeding, any party (except a governmental entity) may be ordered to pay attorney fees to another party when reasonably necessary to provide financial parity between the parties, but with regard to claimaints paying attorney fees and costs, the award must be limited to an amount reasonably necessary to assert or defend the issues related to that party.  (Marriage of Perry (1998) 61 Cal.App.4th 295, 310.)

Financial parity takes into account the following factors:  the respective incomes and needs of the parties; and any factors affecting the parties’ respective abilities to pay.


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