San Diego Grandparents, Could You Get Custody?

March 16, 2012

Recently, in Corpus Christi, Texas two grandmothers were awarded custody of their one-year-old granddaughter, Gabby. The child's mother, Victoria Valdez, was only 16-years-old when she tragically died from severe head injuries caused by a car accident on New Year's Day. The child's 18-year-old father, Gabriel Padron, was driving the car when the accident occurred and is suspected of driving under the influence of alcohol. Although he admits to drinking prior to the crash, he denies being drunk while driving his vehicle. No arrest has been made and charges have yet to be filed; however, he has been accused of intoxication manslaughter. Toxicology results are still pending.

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During the custody case, Gabby's aunt testified that Padron was a dangerous domestic violence perpetrator and was unsafe for Gabby to be around. Valdez's sister further testified that the victim refused to leave Padron out of fear. During the trial, witnesses testified about both grandparents' role in Gabby's life prior to the accident and what accommodations Gabby would have in their custody. These witnesses described the baby's room, clothes, crib, and toys in each home. As part of a temporary custody agreement, the paternal and maternal grandmothers will share custody and Gabby will continue to reside with her paternal grandmother who cared for her immediately following the accident. Gabby's father was only given weekend visitation.

In San Diego, generally, following the death of a custodial parent, the surviving parent is entitled to sole legal custody. However, other relatives such as aunts, uncles, or grandparents may fight to obtain custody of the child. These relatives may file a guardianship or dependency action, or in the case of grandparents, a motion for grandparent visitation. If the relatives are successful in showing it is not in the child's best interest to remain with the surviving parent, they may be awarded custody. In the Texas case, family members testified about the father's violent behavior and suspected drunk driving and eventually were granted temporary custody of the minor child.

Under California Family Code section 3104, a grandparent of a minor child may petition the court for visitation rights. The court may grant reasonable visitation if the court does the following: (1) finds that a grandparent-grandchild relationship existed prior to the action and that it is in the best interest of the child to visit with the grandparent, and (2) carefully balances the parent's right to exercise his or her authority and deny visitation against the interest of the child in having visitation with the grandparent. It is important to note that this type of petition may not be filed while the grandchild's parents are married unless one or more of the following exceptions apply:

(1) The parents are living separate and apart on a permanent or indefinite basis;
(2) One parent has been missing for more than one month and the other parent has no knowledge of his or her whereabouts;
(3) One of the parents joins the grandparent in his or her petition;
(4) The child is not currently living with either parent; or
(5) A stepparent has adopted the child.

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Grandparents may have an uphill battle convincing the court it is in the child's best interest for the grandparent to have visitation. In California, there is a rebuttable presumption that grandparent visitation is not in the child's best interest if the parents agree that visitation rights should not be granted.

Please contact us if you questions regarding child custody, visitation or support. San Diego Family Law Attorney Nancy J. Bickford is the only board-certified divorce lawyer in San Diego representing clients who also holds an MBA and a CPA. Don't settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.