Grandparent's Visitation and Custodial Rights: a Practitioner's Tool Kit
| Publication year | 2019 |
| Author | Alphonse F. Provinziano |
Alphonse F. Provinziano
Alphonse Provinziano is a well known Beverly Hills Divorce and Family Law attorney. Mr. Provinziano is a Certified Family Law Specialist by the State Bar of California, Board of Legal Specialization. A graduate of UC Berkeley and Hastings Law School, he is the principal of Provinziano & Associates. For more information visit: http://www.Provinziano.com
Let's be honest - child custody can one of the most daunting areas in the practice of family law. Why would anyone want to take on an even more challenging area of the law - grandparent's rights? The answer is that grandparents are important parts of children's lives. The Legislature has recognized this in grandparent visitation legislation - as well as the courts upholding this legislation - since many grandparents play an important role in children's rights. Anecdotally, in my practice, I have seen multi-generational families living under one roof, often with significant and meaningful relationships between grandchildren and grandparents, who in these cases become a part of the child's daily life. In the eye of the child, these grandparents can often take on parent-like roles. A problem arises when grandparents are shut out of being a part of their grandchild's life. There is a rapidly evolving area of law developing around seeking rights for grandparents.
Thus, the practitioner of grandparent's rights serves an important role - they are helping to secure access by a grandchild to their grandparent, when one of the parents is in opposition of the relationship of a child to the grandparent. The resources in this area are slight, and in colloquial practice, they are not seen on a routine basis in trial courts in the same volume and magnitude as a child custody case.
This article seeks to break down the important things to know in getting a grandparent's rights case off the ground and into the courtroom.
The process to file turns on whether or not there is an action in place or not. If there is no action pending between the parents, then a new case is initiated and the general civil summons is issued on Judicial Council form SUM-100. Per California Code of Civil Procedure, a petition alleging grandparents rights is drafted (there currently is no judicial council form, but many counties have promulgated their own forms, such as Orange County form L-0373, which is an example of a Judicial Council style petition). These petitions can be used to draft their own grandparents' right actions on pleading forms in other counties, if an applicable county does not have a local form. See the attached pleading below at Figure 1 for a template of a grandparent's rights petition, which can be easily adapted for use in any county. Service of the summons and petition must be accomplished by personal service on the parents of the child, any step-parent, and any person with physical custody.1
More commonly, there is a case pending - either a divorce case or a parentage case. In this circumstance, the California Rules of Court require the petition to be filed under the pre-existing case number. However, a new summons and petition are involved, and are still required in filing for grandparent's rights.2 The respondent is the custodial parent of the child. The petition should be adapted and the caption changed to list the grandparent as a claimant or other party, in the case of a pre-existing action.3 In this circumstance, service is accomplished by certified mail, return receipt...
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