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Rodolfo Herrera

Attorney At Law

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Month: May 2015

Grandparent Visitation Rights

In general parents hold the rights to determine what is in the best interest of a child when making decisions about a child’s life. Decisions to allow grandparent’s rights to see their grandchildren are within the scope of this general power of the parents to make decisions about a minor child’s life. However, certain circumstances can complicate this issue if relationships between parents and grandparents are strained or one parent deceases and the grandparents of the deceased parent are seeking rights to visit their grandchildren. If visitation cannot be agreed upon between parent and grandparents documents may be filed with the court to determine if visitation orders are in the best interest of the child.

Grandparents have rights under the law specifically in the following two cases, during the pendency of a dissolution, and if one parent has deceased. In both circumstances the court looks to different factors to determine what is in the best interest of the child. The California family code states that the court is allowed to grant visitation rights if there is a preexisting relationship between grandchild and grandparent that created a bond leading to visitation as within the best interest of the grandchild. Additionally, the court makes its determination upon petition by a grandparent by balancing the interest of the child against the rights of the parent.

On the other hand, the court presumes visitation with grandparents is not within the best interest of the child if both parents agree to not allow visitation. There is also a presumption under the law that parents are fit to make such decisions for their child, unless the grandparent can rebut that the parent is not a fit parent in the paperwork they file with the court seeking visitation. Thus, unless special circumstances apply, rights of a grandparent are limited and subject to the presumptive rights of parent’s right to rear their own children, including making decisions about whom they spend time with amongst their family members.

The Basic Timeline of the Dissolution Process

Often people contemplating divorce simply want to know how long the entire process takes to complete before beginning the process. The simple answer is: at minimum 6 months. A Divorce is finalized and the parties are single once again on the date the court determines all matters have been resolved in the case, but at minimum this takes 6 months. This process can seem overwhelming to many, knowing that a multiple month process is ahead of them. However, it is beneficial to look at the dissolution process as a timeline, with several essential steps leading to the goal of the finalized judgment. It is important to keep in mind each state has different laws governing divorce and each county has unique forms and procedures as well. The broad summary below is specific to the family law rules of the courts in San Diego, California though most laws are statewide.

The first step to begin the dissolution process is to draft and file the Petition for the dissolution, the summons informing the other party that such Petition is being filed with the court, and if the parties have children, a document known as the UCCJEA documenting all places of residence each child of the marriage has resided. The next essential step is getting the other party served with these papers; anyone over the age of 18 beside the parties in the matter may serve the other party. When serving the other party a copy of the papers filed with the court as well as blank response papers must be served on the other party, unless the other party has retained an attorney, then the other party’s attorney would be served. Once the person who serves the other party the initial petition papers, the clock begins to run, and six months from that date is the first possible day in which the parties could be officially divorced. However, this process can take longer depending on several factors like: the length of the marriage, if there are minor children of the marriage, property acquired during the marriage, etc.

After the first two crucial steps take place, there are several other documents, including those disclosing to the court all employment information and pertinent financial information necessary for the court to evaluate how all property will be divided. Other documents are filed if there are children of the marriage to establish child custody, visitation plans, and support orders, if applicable. Once all required forms are filed with the court, the parties are free to and are encouraged by the court to settle the matter outside of court. If the parties decide to take this route the matters stipulated between the parties are submitted for approval with the court, and once approved, the court then determines the date to which the parties are once again legally single. However, if settlement is not possible, as a last resort a trial on any matter to which settlement cannot be reached may be set before the court. If a trial is set, it is then in the court’s hands to decide what is in the best interest of all parties involved.

In sum, the court process to obtain a divorce can frequently be confusing and overwhelming. Thus, it is often helpful to consult with an experienced attorney regarding the specifics of a matter to protect a party’s rights and interests.

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