Conditions for grandparents visitation rights include a determination of whether a parent is deceased, the child’s parents are divorced or separated, if the whereabouts of one parent is unknown, or the child is not residing with either parent. In addition to determining that grandparents visitation is in the child’s best interests, the court must find that the grandparents had a preexisting relationship with the grandchild. The court must also balance grandparents visitation with the parents’ rights. If both parents agree that the court should not grant grandparents visitation to the grandchild, the court will presume that visitation is not in the child’s best interests.
Visitation in Dependency Court and Family Law Court
A grandparent seeking visitation with a grandchild and the matter is in a California Family Law court will have to satisfy the requirements of California Family Code § 3104. A grandparent seeking visitation with a grandchild and the matter is in a California Dependency court need only show that visitation between grandparent and grandchild is in the grandchild’s best interests.
Visitation Rights Awarded During a Dependency Hearing
In re J.T., a California Court of Appeal, released a decision that clarifies grandparents visitation rights awarded during California dependency hearing. It is important to note that this case only applies to dependency cases, specifically, those cases that are before Department of Children and Family Services Courts, and not cases that are in Family Law Courts.
Visitation Under Family Law Courts
California Family Code § 3104, which applies to grandparents visitation awarded in a Family Court provides that a court can grant grandparents visitation rights if the court discovers that there is a preexisting bond between the grandchild and the grandparents and that maintaining their relationship would be in the best interest of the child. The best interests of the child and their relationship with their grandparent must also take into consideration, and balance, the parents’ right to raise their child.
Visitation Under Dependency Courts
In the J.T. case, the mother asserted that allowing the grandparent visitation infringed on the mother’s right to make decisions concerning the care, custody, and control of her child, citing Troxel v. Granville (2000) 530 U.S. 57. In Troxel, the United States Supreme Court found unconstitutional a State of Washington statute that permitted “any person” to petition a superior court for visitation with a minor at any time authorizing the court to grant visitation rights whenever doing so served the best interests of the child. The United States Supreme Court’s rational was that the Washington State statute was an unconstitutional infringement of parents’ fundamental right to make decisions concerning the care, custody, and control their children.
However, the Court in J.T. noted that “while grandparents’ rights to visitation are governed by Family Code provisions in a family law matter, nothing in Family Code § 3104 indicates that it applies to grandparents’ visitation rights awarded during California dependency hearing. The Court in J.T. went further to state that Troxel does not support mother’s contentions here and that unlike a parent in a family law proceeding, mother did not have the benefit of a presumption of parental fitness. Mother was before a California dependency court due to the fact that she posed a substantiated risk by lacking the ability to J. T. In short, unlike family court, the presumption of parental fitness that supports parents’ right to raise their child, does not exist in a dependency action.
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