Child custody battles can be very emotionally intense. They don’t
always happen between divorced parents. In fact, many custody cases are
contests between parents and nonparents. This article discusses the legal
implications of custody battles between parents and nonparents.
Custody over a minor child can basically be awarded to anyone. However,
California law recognizes an order of preference as to who is entitled
to custodial rights over the child. This preference is based on how the
value of a child’s relationship with that person factors into the
child’s best interest. The order of custodial preference is listed
in Family Code Section 3040(a).
Under Family Code § 3040(a) custody should be granted to the following
persons in order of preference:
- To both parents jointly or to either parent;
- If to neither parent, to those persons in whose home the child has been
living in a “wholesome and stable environment”; and
- To any other person the courts deems to be suitable and capable of provide
sufficient care and guidance to the child.
As you can see, there is no presumption that favors one parent over the
other. Furthermore, there is no preference that is specifically based
on the blood relationship between the child and someone seeking custody.
Furthermore, the immigration status of a someone will not automatically
disqualify them from receiving custody over a child.
Tests for Determining the Appropriateness of Nonparental Custody
If the parents of a child still have their parental rights intact, a court
will only grant custody of the child to a nonparent if both of the following
- Granting custody to the child’s parents would be detrimental to the
- Granting custody to the nonparent is in the best interests of the child.
These two considerations are important because granting nonparental custody
over a minor child is essentially two orders – one: denying custody
to the child’s parents, and two: granting custody to the nonparent.
Whether granting custody to the child’s parents is detrimental to
the child requires the court to answer the question: Is granting custody
to the nonparents essential to prevent harm to the child. Courts have
recognized that removing a child from a stable environment constitutes
“harm to the child.” Although a child’s parents might
not have abandon or intend to abandon their child, this does not necessarily
mean that granting custody to them would not be detrimental to the child.
Visitation for Nonparents
California’s family law courts have the discretion to determine the
visitation rights of a nonparent who has an interest in the wellbeing
of a child. Statutory law recognize visitation rights for grandparents,
stepparents, and certain relatives of a parent who passed away.
A grandparent may be granted reasonable visitation rights with their grandchild
if the court determines the following:
- The current relationship between the grandparents and grandchild “has
engendered a bond such that visitation is in the best interest of the
- The benefits of granting visitation rights to grandparents outweighs the
right of the parents to exercise parental authority.
If both parents of a child oppose stepparent visitation rights, the court
will only grant such visitation rights in unusual and extreme situations.
As with most other determinations involving child custody and visitation,
stepparent visitation must comply with the best interests of the child.
Hire an Experienced Westlake Village Divorce Attorney
If you need legal advice regarding litigation that arises after your divorce,
you should consult a
Westlake village family law attorney with experience with post-judgment divorce matters. At the
Law Offices of Jeffrey S. Graff, our legal team, led by Attorney Graff, has years of experience handling
divorce litigation that springs up after the court issues a final judgment.
For more information about how the Law Offices of Jeffrey S. Graff can
help you, call us at (805) 633-4999 to
schedule a free consultation today.