The legal definition of “Parental Rights” is far more complicated than meets the eye. Being a biological parent does not necessarily equate to an automatic entitlement to “parental rights”. A guardian who is not technically the biological parent of a particular child may actually have parental rights despite common assertions to the contrary. 

If you feel that you are entitled to parental rights of your step- child, grandchild, niece, nephew, or otherwise, it is important that you consult with a family law attorney so that you can be fully informed of your rights and options moving forward under the Family Law Code. 

Should you sincerely feel that your legal acquisition of parental rights would be better for the child’s health, safety, or welfare than would be the case should one or both of the biological parents maintain parental rights, it is essential that you actively engage in moving the applicable California courts to award you legal parental rights. Acquiring such rights will allow you to have all capabilities and options that a biological parent would in caring for a child. 

Fischer & Van Thiel, the top family law attorneys in Oceanside, are ready to step up to the plate and ensure that you are granted the legal parental rights that you are legally entitled to.


What Does it “Parental Rights” As Dictated by the California Family Law Code?

Oceanside California Family Law Attorney

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As a general matter, the biological parent is always presumed to have full parental rights from the onset. However, should both biological parents be unfit for whatever reason, the court has the ability to exercise their discretion and award a “non-biological” parental figure full parental rights. 

Understandably, under normal circumstances, a biological parent absolutely should have the full parental rights when it comes to caring for and raising their child as he or she sees fit. It is safe to say that under most circumstances, a biological parent will always have the best interest of the child in mind. Unfortunately, this is not always the case. Sometimes, a biological parent is simply not capable, unwilling, or otherwise unavailable to put the time into caring for their child fully and completely as dictated by California statute and case law. 

As set forth in California Family Code Section 3105 (a), a parent’s fundamental right to provide for the care, custody, companionship, and management of his or her children, while compelling, is not absolute. Children have a fundamental right to maintain healthy, stable relationships with a person who has served in a significant, judicially approved parental role.

What this ultimately means is that you may have a preference as far as parental rights go if you have been conscientiously caring for and looking out for the best interest of child a who is not biologically your own for a significant period of time. 



Section (c) of Family Code 3041 explains that “detriment to the child” includes:

  1. the harm of removal from a stable placement of a child, 
  2. with a person who has assumed, on a day-to-day basis, the role of his or her parent, 
  3. fulfilling both the child’s physical needs and the child’s psychological needs for care and affection, 
  4. and who has assumed that role for a substantial period of time.

Of primary importance here is the fact that the existence of these factors may ultimately rebut the presumed parental right of a biological parent. Namely, should a particular individual have essentially substituted as the parent of a non-biological child, the parent’s presumed parental rights do not necessarily apply.  Specifically, a finding of detriment does not require any finding of unfitness of the parents.

In plain this English, the current family law legal system in California considers the following factors in awarding custody to a non-biological guardian:

  • One or both biological parents are alive yet not fit fit to care for the child
  • the child has been living with a non-biological parent for a long period of time, or
  • both parents have voluntarily relinquished their rights to the child.

This likely all seems very convoluted to you  – and understandably so. The silver lining in interpreting the majority of child custody or child support related legal issues in California is that one overall guiding principle typically applies across the board. Namely, What is in the best interest of the child as a general and practical matter?.

While this is a convoluted legal issue and the written words of the Family Code can be a bit discouraging, it’s important to understand that these “words” are ultimately guided by the overall policy of the legislature and judicial system to ensure the your child is in the best situation possible for his or her well-being, happiness, comfort, and safety.

Nevertheless, this is not an avenue to venture down without some professional guidance. It is ultimately in the best interest of your child to hire a professional to work with you in developing a plan of action to ensure that a custody arrangement is legally sound and beneficial to both you and your child.