Grandparents have a measurable influence in a child’s cognitive, behavioral, and social development. They offer emotional support and comfort relay, family history, and give advice. When families dissolve and change due to divorce, remarriage, or geographic distance, seeing grandchildren may be difficult. California Family Code sections 3100-3105 specifically provide for grandparents’ rights, and detail situations the court must consider before giving visitation to a grandparent.
Grandparents’ visitation rights in California is an evolving and rather complex area of law. While the Family Code has dedicated specific sections to grandparents’ visitation rights, the courts have narrowed or expanded those rights. Following a United States Supreme Court decision in 2000 that invalidated a broadly-worded Washington grandparent visitation statute, many questions arose concerning the validity of California statutes. (See Troxel v. Granville (2000) 530 U.S. 57). However, after Troxel, California courts have consistently upheld the constitutionality of California’s grandparents’ visitation statutes.
Despite the clear trend affirming California’s statutes, grandparents face significant statutory hurdles before a family court will order visitation.
When Grandparents May Petition for Visitation
Grandparents may petition the court for visitation with their grandchildren in any of the following situations: 1) when a parent has died; 2) when a divorce or other family law case is still pending and child custody is at issue; and 3) when parents are not married to each other.
When the parents are still married, a grandparent generally cannot file for visitation rights. However, there are exceptions. If the parents are separated on a permanent or indefinite basis, if one parent’s whereabouts have been unknown for at least a month, if one parent joins in the visitation request, if the grandchild does not live with either parent, or if the grandchild has been adopted by a stepparent, grandparents may petition the court for visitation rights with their grandchildren.
Further, if a grandparent is awarded visitation and there is a change in circumstances in the future such that none of the above scenarios apply, upon request by either parent the court must terminate the grandparents’ visitation rights.
Balancing Test Used by the Court
In deciding whether to grand visitation to grandparents, a California court will balance the interests of the child against the traditional right of the parents to make decisions about their children. To determine that grandparents’ visitation is in “the best interests of the child,” the court must find a strong, pre-existing relationship between the grandparent seeking visitation and the child. Thereafter, the court must determine whether the interests of the children in seeing their grandparents outweighs the parental authority of the parents.
General Presumption in Favor of Parents
A parent has a fundamental right to decide who, if anyone, may visit with his or her children. Because the court will presume that fit parents always act in the best interests of their children, the grandparent seeking visitation has the burden to prove that visitation is in the best interests of the grandchildren. This means that the grandparents must present significant facts and evidence to persuade the court that visitation would advance the interests of the children to overcome the presumption and obtain visitation rights.
While grandparents have the burden of persuading the court, a parent’s right to provide for the care, child custody, companionship, and management of his or her children is not absolute. Grandparents seeking visitation may be aided by the fact that a parent unreasonably allows no visitation with a grandchild with whom a preexisting bond exists. Additionally, the presumption may be avoided altogether if the grandparents set forth evidence that the parent opposing visitation is unfit as a parent. A court need not consider the wishes of an unfit parent in determining whether nonparent visitation is in the child’s best interests. (See Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1492).
The procedures for filing for grandparents’ rights must be strictly followed. Because the proper procedure to follow is different depending on the facts of each case, it may be difficult to figure out the correct avenue to take in petitioning the court for visitation. If you believe having a relationship with your grandchildren are in his or her best interests, a family law attorney can help you get visitation rights even if your grandchild’s parent objects.
