What happens if you are a grandparent and you would like court ordered visitation rights with your grandchildren in California? In California, under Family Code section 3100, the family court may grant reasonable visitation rights to the grandparent of a minor child.
California can be fairly permissive when it comes to granting orders of visitation between grandchildren and grandparents. In deciding whether to grant visitation rights to anyone, a court will always place the interests of the child first. For a court to order visitation, a California court will balance the interests of the child against the traditional right of the parents to decide who their children associate with. The rights of parents to decide who their children associate with (including grandparents) was determined by the US Supreme Court to be a fundamental right on par with freedom of speech.
There are three basic situations in which grandparents are given legal right to visit their grandchildren:
- When a parent has died, a court may grant visitation rights to a close relative of that parent if it would be in the best interest of the child.
- If the parents divorce, a grandparent may be permitted join in the divorce proceedings to seek visitation rights or file a separate action. Visitation may be granted if it is in the best interest of the child.
- If the child’s parents are not married, the grandparents may be allowed to seek visitation rights.
Is There a Preexisting Case Filed with the Court?
If a family law case, such as a divorce or paternity case, between your grandchild’s parents has already been filed, you may be allowed to join that case and ask for grandparent visitation rights.
What If There Is No Case Filed with the Court?
If a family law case has not been opened, then you must file a petition requesting grandparent visitation rights and open a case with the family court. On petition to the court by a grandparent of a minor child, the court may grant reasonable visitation rights to the grandparent if the court does both of the following:
- Finds that there is a pre- cexisting relationship and bond has been made that is in best interest of the child.
- Balances the interest of child in having visitation against right of parent to exercise their parental authority.
Note: There is no official court form to petition the court for grandparent visitation.
Are the natural or adopted parents still married?
A petition for grandparent visitation shall not be filed while natural parents or adopted parents are married unless one or more of the following occurs:
- The parents are currently living separately and apart on a permanent or indefinite basis.
- One of the parents has been absent for more than one month without other spouse knowing the whereabouts.
- One of the parents joins in the petition for the grandparents.
- Child is not residing with either parent.
- Child has been adopted by stepparent.
- One of the parents is incarcerated or involuntarily institutionalized.
Petitioner shall give notice to parents, stepparent, or person with physical custody, by personal service.
Rebuttable Presumption:
The court will presume that fit parents always act in the best interests of their children. There is rebuttable presumption affecting the burden of proof that visitation of a grandparent is not in the best interest of a minor child if the parent who has been awarded full custody or the parent whom the child resides with, objects. In layman’s terms, if the child’s primary parent objects to visitation with the grandparent, then the court assumes it is in the child’s best interest not to have visitation with the grandparent.
This does not mean it is impossible to be granted visitation over the objection of the child’s parent(s); it just means that the “road to grandparent visitation” will be much more difficult.
A Parent’s Fundamental Right to Raise His or Her Child is Not Unconditional
In California, under Family Code section 3105, children have a fundamental right to maintain healthy, stable relationships with the person who has served a significant parental role.
A grandparent seeking visitation with a grandchild must be prepared to show a significant pre-existing relationship with the grandchild, including facts that show how the loss of that relationship will have a negative impact on the child.
Grandparents must also temper their expectations about the amount of visitation they can expect with the grandchildren. It is not uncommon for the court to order the grandparents visitation of a couple of hours each month. In fact, the court has routinely found that visitation which occurs once every couple months is meaningful visitation.
Every case is unique so it is important that you discuss your case with a qualified family law attorney. The attorneys at Bickford Blado & Botros have handled many cases addressing grandparents visitation.
Feel free to contact us if you are considering a divorce from your spouse, a legal separation, or have questions regarding grandparents visitation. Nancy J. Bickford is the only Certified Family Law Specialist (CFLS) in San Diego County who is also a licensed Certified Public Accountant (CPA) with a Master of Business Administration (MBA). Don’t settle for less when determining your rights. Call 858-793-8884 in Del Mar, Carmel Valley, North County or San Diego.