When something happens to a minor child’s nuclear family such as divorce or death of a parent, who has custody or visitation of the minor children can be an issue. There has been a legal trend towards granting custody of the minor children to their family member.

However courts will always try to grant custody to the other parent if one parent dies or does not want to have custody of the minor children. Parents have an automatic first right to raise their children without interference from the grandparents if the parents are declared fit parents. There is a presumption that a fit parent will always act in the best interest of the children.

If a grandparent wants visitation with their grandchildren and the parent with custody objects, the grandparent must show the court that it would be in the best interest of the grandchildren to have physical contact with the grandparents. The California courts must also see that it would be harmful to the grandchildren’s mental health if they could not have some physical contact with their grandparents. Another factor to be considered in whether to grant visitation with grandparents in California courts, is whether there was a pre-existing relationship with the grandchildren.

When a grandparent in California wants custody of their grandchildren, the conditions to meet are similar to visitation. It would not be in the best interest of the minor children and it would be harmful to the grandchildren to remain in custody of the parent. Usually harmful conditions would be things like abuse to the children or drug usage of the parents. Granting custody to someone other than a parent usually happens when a parent dies, is declared unfit by a California court, or does not want custody of the minor children.

In San Jose California, deciding on whether to pursue grandparent rights can be a difficult decision and process, it would be best to get the advice of a skilled San Jose family law attorney.