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Manual for Grandparent-Relative Caregivers and Their Advocates:
Dependency Proceedings
Getting a Child out of a Shelter
Visitation Rights of Grandparents
When Permanent Custody is Necessary
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When Permanent Custody is Necessary
  1. Can grandparents or other relatives get custody of grandchildren without the parents' consent?
  2. Can a grandparent who has guardianship of a grandchild be required to return the child to the parents?

Although we have found that most grandparents and other caregivers are only interested in having temporary custody of the children they are looking after, there may be some cases where permanent custody is sought. This next section addresses this issue.

1. Can grandparents or other relatives get custody of grandchildren without the parents' consent?

They can—when the court finds that awarding custody to the parent or parents would be detrimental to the child, and that awarding custody to a non-parent would be in the child's best interests. Family Code § 3041 In In re Robert L., 21 Cal. App. 4th 1057, 24 Cal. Rptr. 2d 654 (1993), the court ordered placement of the children with grandparents who had been caring for their 3 grandchildren, even though the mother testified that the grandmother would "sabotage" the mother's relationship with her children. The court found that out of home placement was necessary because of abuse and neglect in the parents’ home and that the grandparents provided a stable situation for the children.

There is no law specifically addressing a grandparent's right to have custody of a grandchild when the parents of that minor child divorce, legally separate, or get an annulment. Courts give custodial preference to a parent absent any unusual circumstances that would warrant awarding custody to a non-parent. If the court determines that an award of custody would be detrimental to the child and non-parent custody would be in the best interests of the child, the court must give preference to a person with whom the child has been living in a "wholesome and stable environment." Family Code § 3040 (a)2 A relative or non-relative caregiver who was raising the child of a substance-dependent parent could rely on this section of the statute to argue that he or she should be awarded custody.

The following two cases were decided before the legislature preempted Civil Code § 4600 in termination of parental rights and juvenile court guardianship and dependency proceedings. We included them to illustrate how some courts have interpreted the concepts of "detriment" and "best interests" in awarding custody to the grandparents. Factors that the courts consider are the health, safety and welfare of the child, whether there has been abuse, and the nature and amount of contact that the child has had with the parents. Family Code § 3011 The court will not consider absence of contact with the child if it is of a short duration and the party continues to show interest in maintaining visitation, or if the party is absent due to acts or threats of domestic violence. Family Code § 3046

In the case of In re Geoffrey G., 98 Cal. App. 3d 412, 159 Cal. Rptr. 460 (1979), Geoffrey's father was convicted of voluntary manslaughter in the death of Geoffrey's mother. While the father was in prison, the mother's parents, who were Geoffrey's legal guardians, petitioned to sever the father's relationship with Geoffrey so they could adopt him. The father objected to the adoption.

The court cited several reasons for ruling in favor of the grandparents. First, parental custody would be detrimental because of the violent nature of the father's crime coupled with his use of alcohol. The father had strangled the mother after drinking heavily and the court was concerned that the child could be harmed if the father continued his drinking habit. The court also cited the fact that the father had never assumed much responsibility for supporting Geoffrey or providing him a home. Geoffrey and his mother had relied on AFDC funds for support. In addition, Geoffrey's grandparents had cared for him from the time of his mother's death, when he was one year old, until the court's decision, two and a half years later. The judge decided that removing Geoffrey from his grandparents' home would harm him, and that there was little chance for a healthy father-child relationship to develop. For all of these reasons, the father's rights were terminated, and the grandparents were able to adopt Geoffrey.

In another case where the court determined that granting parental custody would be detrimental to the child, the maternal grandmother was awarded custody of an 11-year old boy. In In re Volkland, 74 Cal. App. 3d 674, 141 Cal. Rptr. 625 (1977), the mother voluntarily left the boy in the custody of the grandmother when the boy was four years old. For the next seven years, the grandmother took care of the boy, with the mother visiting her son only twice a year. Persuaded by the fact that the grandmother had raised the boy during his formative years, the court determined that it would be in the child's best interest to remain with the grandmother.

2. Can a grandparent who has guardianship of a grandchild be required to return the child to the parents?

The court can, upon petition of the guardian, the parent, or the child, terminate the guardianship if it is no longer necessary or it is no longer in the minor's best interest. Probate Code § 1601

The use of the word “or” in this Probate Code section seems to imply that the court can terminate a guardianship when it is no longer necessary even if it is not in the best interest of the child. However, California courts have interpreted the law to avoid this result. In Guardianship of Kassandra H., 64 Cal. App. 4th 1228, 75 Cal. Rptr. 2d 668 (1998), the maternal grandmother, Patricia Irvine, gained guardianship over the kids when the parents had marital difficulties due to the father’s drinking problem. Patricia was an exemplary guardian, and for over three years she established a nurturing and caring relationship with the children.

Three years later the children’s father, Don, overcame his drinking problem and petitioned the court to terminate the guardianship. The Superior Court Judge granted the petition on the grounds that the petition was “no longer necessary” even though he also found that it was in the children’s best interests to stay with their grandmother, 64 Cal. App. 4th at 1232. The Judge based his finding that the guardianship was no longer necessary on the father’s showing that returning the children to him would not be detrimental.

The Court of Appeals reversed. The Appellate Judge held that the lower court judge had misinterpreted the phrase “no longer necessary” and that California courts have always made such a decision through an overall evaluation of the new circumstances. The judge held that it was not enough for the father to prove lack of detriment, because that is the standard used for juvenile dependency law, not guardianship termination law. Rather, a guardianship will be considered “no longer necessary” when the natural parent can show overall fitness sufficient to overcome the trauma of separating a child from a long-term and successful caregiver. 64 Cal. App. 4th at 1240.

Don could not make this showing since he had little relationship with the children, had a tiny apartment, and had not made any plans for childcare, medical care or dental care. Thus the case was remanded to the lower court with instructions to deny Don’s petition to terminate the guardianship.

In Guardianship of M., 136 Cal. App. 3d 708, 186 Cal. Rptr. 430 (1982), the court terminated the grandparents' guardianship of the child and returned custody to her parents, even though the child had been living with her grandparents since birth. When the child was born, the parents were unmarried and financially unable to take care of her. They took the child to the paternal grandparents and agreed that the grandparents should file for guardianship. By becoming legal guardians, the grandparents could obtain medical care for the child and make her a dependent for the grandfather's tax purposes. The grandparents cared for the baby for three and a half years, watching her carefully because she had a respiratory illness.

By the end of three and a half years, the child's parents had found work, married, and gotten back on their feet. They petitioned the court to terminate the guardianship, since circumstances had changed and they could now properly care for the child. The grandparents objected bitterly. They and the father's brothers told the court that the parents had shown little interest in the child, had not visited her often, made her nervous when they did visit, and would be unfit parents. The trial court decided that it was in the child's best interest to continue the guardianship and that it would be detrimental to return her to her parents' custody.

However, the appellate court reversed, finding the testimony of the parents and social worker more persuasive and credible than the testimony for the grandparents. The social worker had testified that the grandparents made it very difficult for the parents to visit the child. The judge attributed the child's nervousness during parental visits to the hostility between the parents and grandparents. Citing the improvement in the parents' living situation, the appellate court decided that it was in the child's best interest to terminate the guardianship and return custody to the parents.


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