lorid2001 said:
I live in Indiana, however my daughter and granddaughter lived/lives in California. Recently, my daughter died and left a 6 year old. She is currently living with her 8 year old sister and the guy that is acting as her father. My granddaughter's birth certificate lists another guy as her father and there has been no contact in well over 5 years. The guy who is currently taking care of the child has never wanted to establish paternity. His family has always said the child is not his (mainly his mother). Now that my daughter is dead, he wants to raise the child, but my daughter told me that she wanted me to raise the child. We have nothing in writing, except birth certificates. I live in a different state and don't know what to do to get permanent custody of my blood grandchild. Any suggestions are welcome.
Thank you
My response:
At
best, you may obtain visitation rights. But, the "man" is undoubtedly her "psychological" parent. Add to this mix that your Grandchild has a sibling living in the same household, and the fact that California is extremely guarded towards its citizens, it's exceedingly doubtful you'll be able to take this child out of California to raise her, which the court recognizes as a serious and detrimental move for the child. Also, you're basically a "stranger" to the child, and it would not be in the "best interests" of the child to separate her from what she knows, her environment, or to live with you.
Similarly, although biological Father (a statutory "presumed" father with constitutionally protected parental rights) was not "unfit," a guardianship petition should have been granted in favor of Nonparents who cared for Child since birth and became Child's "psychological parents." Among other things, expert testimony indicated removing Child (then seven months old) from Nonparents would cause an "attachment disorder" that has serious harmful effects on a child's well-being. [Adoption of Daniele G. (2001) 87 Cal.App.4th 1392, 1408, 105 Cal.Rptr.2d 341, 351]
California Family Code Section 3041(c) is thus in keeping with case law to the effect that a stable de facto parent-child relationship for a substantial period of time may indicate that granting custody to a parent would be detrimental to the child.
"Our review of the relevant authority satisfies us that the loss of a relationship with a nonparent, that has acted as a de facto, or psychological parent, is a factor the court may consider in determining whether parental custody is detrimental to the child." [Guardianship of Olivia J. (2000) 84 Cal.App.4th 1146, 1159, 101 Cal.Rptr.2d 364, 373 (same-sex nonparent domestic partner sought custody by way of guardianship petition)]
At the very least, a nonparent (alleged de facto parent) seeking custody over a parent's objection is entitled to a hearing on the matter. [Guardianship of Olivia J., supra]
Exception where § 3041(c) (de facto parent) finding supported by preponderance of evidence: The "clear and convincing evidence" standard of proof is displaced under § 3041 in one situation: A finding by a preponderance of the evidence that the nonparent to whom custody may be given is a person described in § 3041(c) (a nonparent who provided child a stable home on a day-to-day basis for a substantial period of time, fulfilling child's physical and psychological needs--in effect, a de facto parent--"shall constitute a finding" that custody to that person is in the child's best interest and that parental custody would be detrimental to the child "absent a showing by a preponderance of the evidence to the contrary." [Ca Fam § 3041(d)]
Contact a California Family law attorney, and you'll find out that what I'm telling you is accurate.
IAAL
