Any Automatic Rights?

Do I automatically have a right to care for my child or grandchild?

Not necessarily. Although it may seem like parents and grandparents would have automatic rights to care for a child, being blood-related (biologically related) or married to someone who is blood-related to a child does not mean you automatically have the right to live with, see, or make decisions about your child or grandchild. It’s also important to note that the legal rights of parents are MUCH stronger than those of grandparents. Below we discuss whether you have the legal right to care for a child as a parent and grandparent:

For Parents: The law assumes that a child’s parents—biological or adopted—will make decisions in the “best interest of the child.” so they usually have the automatic legal right to do so.[2309] Courts get involved when something goes wrong, and then the judge makes decisions based on what is in “the best interest of the child” (learn more on what factors a judge looks at in deciding what is in the “best interest of the child” on PG. 728).

    For women, if you give birth to a child, you are the child’s biological parent and so under the law you have the automatic legal right to care for that child unless (1) you have chosen to give up your parental rights through adoption OR (2) the state limited or took away your parental rights for a certain reason.[2310]
    For men, if it is scientifically proven that you are the biological father of the child (this is called paternity) or you were married to or in a domestic partnership with the mother when the child was born, then you have the automatic legal right to care for that child unless (1) you have chosen to give up your parental rights through adoption OR (2) the state limited or took away your parental rights for a certain reason.[2311]

For Grandparents: Under the law, grandparents do NOT have any automatic legal rights to see or care for their grandchildren. In other words, just because your biological child has a child of his or her own does NOT mean you have any legal right to care for or make decisions about that grandchild.[2312] But a grandparent CAN make informal or formal arrangements to take care of or see their grandchildren.

    Informally, absent any legal restrictions due to your criminal background, you MAY be able to make arrangements with your grandchild’s caregiver or parent(s) to spend time with your grandchild.
    If an informal arrangement isn’t possible, then a grandparent could ask a judge in court for custody or visitation with their grandchildren.
    In family court, a grandparent can join an ongoing case involving the grandchildren and ask for custody or visitation.[2313] For more information on Family Court, see PG. 737
    In probate court, a grandparent can start a case or join on ongoing case and request permanent or temporary guardianship of their grandchildren is a parent is UNABLE to take care of the child. For more information on Probate Court, see PG 741.
    In dependency court, a grandparent can ask the judge and the county’s Child Protective Services (CPS) to take care of their grandchild(ren) when a child has been removed from their parents’ care due to abuse or neglect allegations. For more information on Dependency Court, see PG. 747.

Again, whether or not a grandparent will be able to get legal custody of their grandchildren through a formal court case in family court, probate court or dependency court will all depend on what a judge decides is in the “best interest of the child”—learn more about this standard on PG. 728.

  1. 2309

    Parham v. J.R., 442 U.S. 584 (1979).

  2. 2310

    Judicial Council of Cal., Parentage/Paternity (2015), http://www.courts.ca.gov/selfhelp-parentage.htm.

  3. 2311

    Judicial Council of Cal., Parentage/Paternity (2015), http://www.courts.ca.gov/selfhelp-parentage.htm. (“The law will presume a person is a child’s other parent under the following circumstances (unless proved otherwise to a court). For example, John will be presumed to be the child’s other parent if: He was married to the child’s mother when the child was conceived or born; He attempted to marry the mother (even if the marriage was not valid) and the child was conceived or born during the “marriage”; He married the mother after the birth and agreed either to have his name on the birth certificate or to support the child; or He welcomed the child into his home and openly acted as if the child was his own. This concept is called “parentage by estoppel” and means that the court can find that a man is the legal father, even if he is not the biological father, if he has always treated the child as his own. The presumptions that apply to married couples also apply to those who entered into a registered domestic partnership after January 2005.”).

  4. 2312

    See Cal. Fam. Code § 3102(a).

  5. 2313

    See Cal. Fam. Code § 3103(a) (“Notwithstanding any other provision of law, in a proceeding described in Section 3021, the court may grant reasonable visitation to a grandparent of a minor child of a party to the proceeding if the court determines that visitation by the grandparent is in the best interest of the child.”).