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Q: Child Custody following death of a parent ( Answered,   2 Comments )
Subject: Child Custody following death of a parent
Category: Relationships and Society > Law
Asked by: imagebyglo-ga
List Price: $50.00
Posted: 08 Aug 2005 19:29 PDT
Expires: 07 Sep 2005 19:29 PDT
Question ID: 553355
When a grandparent (in California) has legal custody of a child, but
the child has resided in Vermont with her father (real mother
deceased) and step mother for 5 years, when the father dies without
leaving a will can the step mother get custody of the child?

Request for Question Clarification by crabcakes-ga on 10 Aug 2005 23:02 PDT
Hi Imagebyglo,

   You say you had custody, but the child still lived with the father
in Vermont? Why was that? Do the grandparents WANT to have the child
live with them now?

Clarification of Question by imagebyglo-ga on 11 Aug 2005 13:09 PDT
The mother and father were separated (not legally) in 1995-1997 time
frame and sharing custody of child in California. During this time the
father was living with his mother in Camarillo, CA. He was sharing a
bedroom with his daughter in his mother's home. Both of the childs
parents had their own issues during this time. His mother
(grandmother) never liked or approved of the child's mother and did
not want the mother to have any relationship with the child. I believe
that knowing that her son had issues as well, the grandmother sought
custody as a way of achieving this. She has maintained that she was
given custody. This gave her the control to allow or not allow the
mother to have contact with the child. I am married to the father of
the childs mother, and we are considered her "other grandparents". We
have never seen any court document addressing custody.

In October 1997 the child's mother died. The father and his daughter
continued to share a room at his mother's until 2000, at which time
they moved to Virginia (not Vermont at I previously noted) to live
with a friend he had developed a relationship with. In 2002 they
married, at which time his wife became the childs step mother. The
child would visit the grandmother in California each summer for about
2 months and sometimes a week or so during spring break. My husband
and I also reside in California and the grandmother would typically
allow us to see the child for a day or two during these visits.

Although the father and stepmother have been raising the child in
Virginia, along with her two daughters from a previous marriage, he
simply never bothered to have the custody changed. The father suddenly
died 3 weeks ago.

The grandmother is now saying that she will allow the child to go to
school in Virginia this school year so she can say goodbye to friends,
but next year she will retain custody "because she has legal custody
of the child".

The child has become part of the family in Virginia and her step
mother loves her and wants to continue to raise her. This brings me to
where the situation is today. The child (Sarah) is 12. My real concern
is for her best interest. The grandmother is 59, works full time and
will for some time because she can not afford to retire. She is
married to a man that is 70 that has retired. The grandfather rarely
leaves the house and does not like to drive, and basically sits in
front of a TV day and night. This environment provides little
stimulation or motivation for Sarah.  Further , unfortunately the
grandmother has difficulty telling the truth and as a result the child
lies, particularly when having been around the grandmother. Her
parents had been working with her on this issue.

I know that the Sarah is in a loving and nurturing home in Virginia
that will provide continuity after the loss now of her father.  I am
seeking information as to how to best maintain this. I have no hidden
agenda and although I tire of the power and control games the
grandmother maintains, I have always abided by her mandates to be able
to see Sarah when she is in California. We also visit her in Virginia.
Any information will be appreciated. We are willing to retain and
finance a lawyer for the stepmother but wanted to understand our
options prior to doing this.
Thank you.
Subject: Re: Child Custody following death of a parent
Answered By: hagan-ga on 11 Aug 2005 14:21 PDT
Hello Image!  At the outset, please accept my condolences for your
family's losses, and my deepest respect and admiration for your
willingness to help keep Sarah where she is happy and safe.  I think I
have some good news for you. Both California and Virginia will allow a
step-parent to petition for custody, and neither state gives
preference to a grandparent over a step-parent.

Here's an overview of Virginia law:

?The Virginia Code 20-124.2 requires the courts of Virginia to
determine custody and visitation based upon the ?best interests of the
child?. While the court will typically award custody to a parent,
anyone with a ?legitimate interest? in the child may petition and be
awarded custody.?
?In determining an award of custody or visitation, pursuant to
Virginia Code 20-124.3, the court must consider ten factors:
1.	The age, physical and mental condition of the child 
2.	The age and physical and mental condition of each parent; 
3.	The relationship existing between each parent and each child. 
4.	The needs of the child, giving due consideration to other important
relationships of the child, including but not limited to siblings,
peers and extended family members;
5.	The role which each parent has played and will play in the future,
in the upbringing and care of the child;
6.	The propensity of each parent to actively support the child's
contact and relationship with the other parent, including whether a
parent has unreasonably denied the other parent access to or
visitation with the child;
7.	The relative willingness and demonstrated ability of each parent to
maintain a close and continuing relationship with the child, and the
ability of each parent to cooperate in and resolve disputes regarding
matters affecting the child;
8.	The reasonable preference of the child, if the court deems the
child to be of reasonable intelligence, understanding, age and
experience to express such a preference;
9.	Any history of family abuse as that term is defined in  16.1-228 ; and 
10.	Such other factors as the court deems necessary and proper to the

Virginia law (Section 20-124.1) specifically includes a stepparent as
one with a ?legitimate interest? in a child.
?"Person with a legitimate interest" shall be broadly construed and
includes, but is not limited to grandparents, stepparents, former
stepparents, blood relatives and family members provided any such
party has intervened in the suit or is otherwise properly before the
court. The term shall be broadly construed to accommodate the best
interest of the child.?

The phrasing of that Code section leads me to believe that
?grandparent? and ?stepparent? are of equal stature, and no automatic
preference should be granted to the grandparent.  This conclusion is
reinforced by the next section, Section 20-124.2, which provides that
?The court shall give due regard to the primacy of the parent-child
relationship but may upon a showing by clear and convincing evidence
that the best interest of the child would be served thereby award
custody or visitation to any other person with a legitimate interest.?
In other words, even the PARENT-child relationship may be overcome by
clear and convincing evidence, and ?any other person with a legitimate
interest? is on a level playing field with any other non-parent.  If
the Legislature intended to place blood relatives on a higher plane
than stepparents, this would be the place to say so.  They didn?t. 
Only a parent?s relationship is primary.  Once you get past that, then
all other ?persons with legitimate interest? should be equal.

The Court is obligated to consider the best interests of the child
pursuant to  20-124.3.  As noted above, the Court should consider
such things as the reasonable preference of the child; the child?s
other relationships, including those with peers; and the prospective
custodian?s existing role.  It looks to me that those factors weigh in
favor of the stepparent, not the grandparent.
However, you indicate that the grandparent already has legal custody
of the child.  If that is the case,  the burden of proof will be on
the stepparent in her efforts to change that custody order.  ?[W]here
the unchallenged order of a juvenile court remains in effect . . . the
burden is on a parent who seeks to change the custody to show that
circumstances have so changed that the best interests of the child
require the transfer.? Harper v. Harper, 217 Va. 477, 479, 229 S.E.2d
875, 876 (1976) (citing Dyer v.
Howell, 212 Va. 453, 456, 184 S.E.2d 789, 792 (1971))?

It is also possible ? IF the grandmother has a valid custody order ?
that the California courts, rather than the Virginia courts, have
continuing jurisdiction over the child.  If there is a valid
California custody order, then the petition to change the child?s
custodian must be brought in California, and cannot be brought in

Fortunately, California law also permits custody to be awarded to a
stepparent if it is in the child?s best interests.  In fact,
California law (Family Code Section 3040) sets forth a PREFERENCE for
custody to be awarded to the person who has actually been caring for
the child:
?3040.  (a) Custody should be granted in the following order of
preference according to the best interest of the child as provided in
Sections 3011 and 3020:
(1)[to a parent]
(2) If to neither parent, to the person or persons in whose home
the child has been living in a wholesome and stable environment.?

Note that, while parents come first in priority, the very next on the
priority list is the person actually caring for the child.  That?s
your stepmother, not the grandmother.

So:  the first order of business is to find out whether there is a
valid custody order.  If there is, and it was issued in California and
the California courts have continuing jurisdiction, then proceed in
California to have it changed.  If not, then proceed in Virginia.  But
either way, I think the preference will be to keep the child where she

Best of luck to your family.  If I can provide any further assistance,
please don't hesitate to ask for clarification.  Thanks!
Subject: Re: Child Custody following death of a parent
From: myoarin-ga on 11 Aug 2005 18:09 PDT
Great work, Hagan-ga!  May it bring the desired result.
Subject: Re: Child Custody following death of a parent
From: hope4agape-ga on 22 Sep 2005 15:45 PDT
One more note Look up these same laws under Uniform child custody and
jurisdiction and enforcement act.
Time is running. If the Child resides in VA. and has for the last six
months then the forum court is VA. But once the Child leaves the state
then that court will loose power.
California Has the same laws, and in all cases the Best interst of the
child is the prevailing concern. I would think that a case could be
made for Joint continuing custody for both parties.

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