How will a family court judge decide if I get custody or visitation with my child or grandchild?

A family court judge who is deciding whether or not to give you custody or visitation rights (meaning rights to see, care for, and/or make decisions for your child or grandchild) must find that it would be in the “best interest of the child” to do so. The factors a judge will look at in deciding what is in the “best interest of the child” are on PG. 728; your criminal record is just one factor the judge will consider.[2365]

For Parents: The law assumes that it is in the “best interest of the child” to have a stable, consistent relationship with both parents through custody and/or visitation. BUT if one or both parents can’t provide the care and stability that your child needs—or if there is a specific reason to believe that having contact with the parent(s) would be harmful to your child—then the judge will consider other options or even limit or cut off contact between the parent(s) and their child.[2366]

For Grandparents: A Grandparent may request to become the child’s primary caregiver, getting custody of the child, OR a judge might order visitation rights under certain circumstances.

    If you are a grandparent seeking CUSTODY of your grandchild: As a grandparent, you cannot ask for custody of your grandchild if both parents still have full rights to the child. However, if BOTH of your grandchild’s PARENTS have lost or ended their parental rights, you can then ask for custody of your grandchild by asking to become the child’s legal guardian in probate court (see PG. 741 OR in dependency court if CPS is involved in the child’s case (see PG. 747 OR by adopting the child (see PG. 759).
    If you are a grandparent seeking VISITATION with your grandchild: Under state law, a grandparent cannot ask a judge in family court for visitation with a grandchild if the parents of the child are still married, UNLESS one of the following is true:
    The parents are living apart from each other;
    One parent’s location has been unknown (for at least a month);
    One of the parents joins your “petition” (a request filed with the court) to ask for visitation—which means the parent with custody is supporting your request to the judge to have visits;
    The child doesn’t live with either parent;
    The grandchild has been adopted by a stepparent.[2367]

If one or more of these factors are TRUE, you can ask a judge in family court for visitation with your grandchild. The judge will then balance the following factors to make a decision:

    Whether you and your grandchild already have a strong relationship (“a bond”), so that visitation will be in your grandchild’s “best interest;”[2368] AND
    The rights of the child’s parents to make decisions about what is in the best interest of their child.[2369]

Because parents are given priority in making decisions about their child’s care, a family court judge will probably deny your request for visitation if:

    Your grandchild’s parents object to giving you visitation, AND/OR
    The parents are still married and living together with your grandchild.[2370]
    BUT THERE IS ONE IMPORTANT EXCEPTION! If you were ever the legal guardian of your grandchild, that can help. You can tell the family court judge that since you previously served as the legal guardian of your grandchild, you have an important connection (“bond”).[2371]
    In addition to the above two situations, you will DEFINITELY be denied visitation if your grandchild has been adopted by a person other than a stepparent or another grandparent of the child.[2372] This means that if your grandchild was adopted by someone who is not a stepparent or grandparent, then your rights as a grandparents have been cut off (terminated), just like those of your grandchild’s biological parents.
  1. 2365

    Cal. Fam. Code § 3048.

  2. 2366

    See Cal. Fam. Code §§ 3020(b), 3100(a) (“[T]he court shall grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child.”) (emphasis added). See also, e.g., Punsly v. Ho, 87 Cal. App. 4th 1099, 1109 (2001) (“[In determining the child’s best interest,] a presumption exists that fit parents act in the best interests of their children.”).

  3. 2367

    Cal. Fam. Code § 3104(b).

  4. 2368

    Cal. Fam. Code § 3104(1)(a)

  5. 2369

    Cal. Fam. Code § 3104(a)(2)

  6. 2370

    Cal. Fam. Code § 3103-04.

  7. 2371

    Cal. Fam. Code § 3105(b).

  8. 2372

    Cal. Fam. Code § 3102(c).