Under California law, a grandparent has the right to make a request to the court for reasonable visitation with a grandchild. A California court will take into the pre-existing relationship between grandparent and grandchild, that has “engendered a bond,” and will balance the best interest of the child in having visitation with a grandparent with the rights of the parents to make decisions about their child.
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Grandparent Grandchild Visitation
A grandparent grandchild visitation can be awarded if the grandparent has an interest in the child’s welfare. There are many situations in which grandparents may petition for visitation with their grandchildren.
Deceased Parent
Grandparent grandchild visitation under California Family Code Section 3102:
(a) If either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the child’s minority upon a finding that the visitation would be in the best interest of the minor child.
(b) In granting visitation pursuant to this section to a person other than a grandparent of the child, the court shall consider the amount of personal contact between the person and the child before the application for the visitation order.
(c) This section does not apply if the child has been adopted by a person other than a stepparent or grandparent of the child. Any visitation rights granted pursuant to this section before the adoption of the child automatically terminate if the child is adopted by a person other than a stepparent or grandparent of the child.
Also see Rich v Thatcher (2011) 200 CA4th 1176, 1181; Hoag v Diedjomahor (2011) 200 CA4th 1008, 1013.
During Divorce
Grandparent grandchild visitation under California Family Code Section 3103:
(a) Notwithstanding any other provision of law, in a proceeding described in Section 3021, the court may grant reasonable visitation to a grandparent of a minor child of a party to the proceeding if the court determines that visitation by the grandparent is in the best interest of the child.
(b) If a protective order as defined in Section 6218 has been directed to the grandparent during the pendency of the proceeding, the court shall consider whether the best interest of the child requires that visitation by the grandparent be denied.
(c) The petitioner shall give notice of the petition to each of the parents of the child, any stepparent, and any person who has physical custody of the child, by certified mail, return receipt requested, postage prepaid, to the person’s last known address, or to the attorneys of record of the parties to the proceeding.
(d) There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the child’s parents agree that the grandparent should not be granted visitation rights.
(e) Visitation rights may not be ordered under this section if that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding.
(f) Visitation ordered pursuant to this section shall not create a basis for or against a change of residence of the child, but shall be one of the factors for the court to consider in ordering a change of residence.
(g) When a court orders grandparental visitation pursuant to this section, the court in its discretion may, based upon the relevant circumstances of the case:
(1) Allocate the percentage of grandparental visitation between the parents for purposes of the calculation of child support pursuant to the statewide uniform guideline (Article 2 (commencing with Section 4050) of Chapter 2 of Part 2 of Division 9).
(2) Notwithstanding Sections 3930 and 3951, order a parent or grandparent to pay to the other, an amount for the support of the child or grandchild. For purposes of this paragraph, “support” means costs related to visitation such as any of the following:
(A) Transportation.
(B) Provision of basic expenses for the child or grandchild, such as medical expenses, day care costs, and other necessities.
(h) As used in this section, “birth parent” means “birth parent” as defined in Section 8512.
Unwed Parents
Grandparent grandchild visitation under California Family Code Section 3104:
(a) 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:
(1) Finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child.
(2) Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.
(b) A petition for visitation under this section shall not be filed while the natural or adoptive parents are married, unless one or more of the following circumstances exist:
(1) The parents are currently living separately and apart on a permanent or indefinite basis.
(2) One of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse.
(3) One of the parents joins in the petition with the grandparents.
(4) The child is not residing with either parent.
(5) The child has been adopted by a stepparent.
(6) One of the parents is incarcerated or involuntarily institutionalized.
At any time that a change of circumstances occurs such that none of these circumstances exist, the parent or parents may move the court to terminate grandparental visitation and the court shall grant the termination.
(c) The petitioner shall give notice of the petition to each of the parents of the child, any stepparent, and any person who has physical custody of the child, by personal service pursuant to Section 415.10 of the Code of Civil Procedure.
(d) If a protective order as defined in Section 6218 has been directed to the grandparent during the pendency of the proceeding, the court shall consider whether the best interest of the child requires that any visitation by that grandparent should be denied.
(e) There is a rebuttable presumption that the visitation of a grandparent is not in the best interest of a minor child if the natural or adoptive parents agree that the grandparent should not be granted visitation rights.
(f) There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the parent who has been awarded sole legal and physical custody of the child in another proceeding, or the parent with whom the child resides if there is currently no operative custody order objects to visitation by the grandparent.
(g) Visitation rights may not be ordered under this section if that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding.
(h) Visitation ordered pursuant to this section shall not create a basis for or against a change of residence of the child, but shall be one of the factors for the court to consider in ordering a change of residence.
(i) When a court orders grandparental visitation pursuant to this section, the court in its discretion may, based upon the relevant circumstances of the case:
(1) Allocate the percentage of grandparental visitation between the parents for purposes of the calculation of child support pursuant to the statewide uniform guideline (Article 2 (commencing with Section 4050) of Chapter 2 of Part 2 of Division 9).
(2) Notwithstanding Sections 3930 and 3951, order a parent or grandparent to pay to the other, an amount for the support of the child or grandchild. For purposes of this paragraph, “support” means costs related to visitation such as any of the following:
(A) Transportation.
(B) Provision of basic expenses for the child or grandchild, such as medical expenses, day care costs, and other necessities.
(j) As used in this section, “birth parent” means “birth parent” as defined in Section 8512.
See also Marriage of Harris(2004) 34 C4th 210, 211.
Parents Living Separately
Grandparent grandchild visitation under California Family Code Section 3104(b):
(b) A petition for visitation under this section shall not be filed while the natural or adoptive parents are married, unless one or more of the following circumstances exist:
(1) The parents are currently living separately and apart on a permanent or indefinite basis.
(2) One of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse.
(3) One of the parents joins in the petition with the grandparents.
(4) The child is not residing with either parent.
(5) The child has been adopted by a stepparent.
(6) One of the parents is incarcerated or involuntarily institutionalized.
At any time that a change of circumstances occurs such that none of these circumstances exist, the parent or parents may move the court to terminate grandparental visitation and the court shall grant the termination.
Preexisting Bond Required
A court may establish grandparent grandchild visitation only if it finds that there is a preexisting bond between grandparent and child such that visitation is in the child’s best interest, and balances the child’s interest in visitation against the parents’ right to exercise parental authority. This applies only if the parents are not married, including after a marital dissolution. It also can apply, however, to married parents if any of the following circumstances exist:
- They are living separately and apart on a permanent or indefinite basis;
- One parent has been absent for over a month without the other knowing the whereabouts of the absent parent;
- One parent joins in the petition with the grandparents;
- The child is not residing with either parent;
- The child has been adopted by a stepparent; or
- One parent is incarcerated or involuntarily institutionalized.
Termination of Grandparent Grandchild Visitation
If a change of circumstances occurs such that none of the above circumstances exists, one or both parents may move to terminate grandparent visitation, and the court must grant the termination.
Best Interests Standard
The court will use a standard called best interest of the child. A licensed attorney can help represent to the Court the best interests of the child and establish a pattern that shows the Court a strong bond between grandparent and grandchild.
Representation
Grandparents seeking visitation rights might be surprised to find out that their rights to see their grandchildren are very limited. Establishing grandparent grandchild visitation is a complicated matter. A person seeking to file an action in court should consider hiring an experienced attorney to represent them and their rights.
Because your rights are very limited, finding the right attorney to represent your case is imperative. If you are looking to establish visitation rights with your grandchild, consider calling the number listed below to schedule an appointment.
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321-951-9164
For further information on grandparents’ rights and child custody, click on the following links:
Grandparent Visitation California
Temporary Guardianship Minor Child Petition
California Child Custody Modification
