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On Behalf of | Dec 3, 2018 | Firm News

Under California law, a grandparent can ask the court for reasonable visitation with a grandchild. To give a grandparent reasonable visitation with a grandchild, the court has to:

  1. Find that there was a pre-existing relationship between grandparent and grandchild that has “engendered a bond.”  This means that there is such a bond between grandparent and grandchild that visitation is in best interest of the grandchild; AND
  2. 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.

In general, grandparents cannot file for visitation rights while the grandchild’s parents are married. But there are exceptions, like:

  • The parents are living separately;
  • A parent’s whereabouts are unknown (and have been for at least a month);
  • One of the parents joins the grandparent’s petition for visitation;
  • The child does not live with either of his or her parents; or
  • The grandchild has been adopted by a stepparent.

If a grandparent has visitation through the courts, and things change and none of these exceptions apply any more, one or both parents can ask the court to end the grandparent’s visitation and the court must then end the grandparent’s visitation rights at that time.

The following California Family Code sections apply to Grandparent visitation rights; §§  3100-3105.

Keep in mind that, if possible, it may be best for you and your family to try to resolve these issues out of court. Consider mediation between you and your grandchildren’s parents as a way to openly and safely discuss your needs and concerns to try to reach an agreement that is in the best interests of your grandchildren and that preserves your relationship with them as well as with their parents.  It is possible that if you go to court, you will also have to meet with a mediator from Family Court Services.

If you are a grandparent and you are raising your grandchildren either because the parents are absent or are unable to care for their children (like if they are on drugs, or in jail), read our section on Guardianship.  When a non-parent wants custody of a child (and not just visitation rights to see the child) it is called guardianship, and there is a separate court process for guardianships.

How Does a Grandparent Ask for Visitation in Court?

Under the law, a grandparent who wants to ask the court to order visitation with a grandchild can file a petition in court. It is difficult to figure out exactly how to file this petition. There may already be a family law case filed between the child’s parents (like a divorce, a parentage case, a child support case, or a domestic violence restraining order) and a grandparent may be able to ask for visitation under one of those existing cases. Or, there may be no open case, and you, as the grandparent, may have to file a petition in court starting a case from scratch.

The Law on Grandparent Visitation as it Affects California Citizens.

Troxel v Granville 530 U.S. 57 (2000), is a case in which the Supreme Court of the United States, citing a constitutional right of parents to direct the upbringing of their children, struck down a Washington state law that allowed any third party to petition state courts for child visitation rights over parental objections.

Most states have followed this Supreme Court holding; grandparents do not have as strong of fundamental rights to their grandchildren as the actual parents do.

The Court held that “the interest of parents in the care, custody and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by this Court.”  That fundamental right is implicated in grandparent visitation cases, and as such, it struck down the Washington visitation statute because it unconstitutionally infringed on the right.

State courts considering non-parent visitation petitions must apply “a presumption that fit parents act in the best interests of their children.” Troxel requires that state courts must give “special weight” to a fit parent’s decision to deny non-parent visitation, as well as other decisions made by a parent regarding the care and custody of their children.

The plurality held that “choices [parents make] about the upbringing of children… are among associational rights… sheltered by the Fourteenth Amendment against the State’s unwarranted usurpation, disregard, or disrespect.”  This principle must inform the understanding of the “special weight” that Troxel requires courts to give to parents’ decisions. Even though Troxel does not define “special weight,” previous Supreme Court precedent indicates that “special weight” is a term signifying very considerable deference.

The “special weight” requirement, as illuminated by these prior Supreme Court cases, means that the deference provided to the parent’s wishes will be overcome only by some compelling government interest and by overwhelmingly clear factual circumstances supporting that governmental interest. This is essentially identical to the strict scrutiny standard, in keeping with the fundamental status of parental rights.

The California Supreme Court reviewed the grandparent visitation statutes in In re Marriage of Harris (2004) 34 Cal.4th 210, 17 Cal.Rptr.3d 842, 96 P.3d 141 ( Harris ): “Grandparents’ rights to court-ordered visitation with their grandchildren are purely statutory. [Citation.] Three California statutes expressly address grandparent visitation: [S]ection 3102, which permits visitation by a deceased parent’s children, siblings, parents, and grandparents if such visitation would be in the best interests of the child; section 3103, which permits a court in specified proceedings involving the custody of a child to grant grandparent visitation; and section 3104, which permits grandparents to petition for visitation if the grandchild’s parents are not married or if certain other conditions are met.” ( Id . at p. 219, 17 Cal.Rptr.842, 96 P.3d 141, fns. omitted; see also Stuard v. Stuard (2016) 244 Cal.App.4th 768, 199 Cal.Rptr.821; In re Luke H. (2013) 221 Cal.App.4th 1082, 1091, 165 Cal.Rptr.3d 63.) “In addition, section 3100 provides that in making an order for joint custody of a minor child, ‘[i]n the discretion of the court, reasonable visitation rights may be granted to any other person having in interest in the welfare of the child.’ ( § 3102, subd. (a).)” ( Harris , at p. 220, fn. 5, 17 Cal.Rptr.3d 842, 96 P.3d 141..)

Section 3104 provides in part: “(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.” A petition under this statute “shall not be filed while the natural or adoptive parents are married” with certain exceptions (§ 3102, subd. (b) ; see Stuard v. Stuard , supra, 244 Cal.App.4th at p. 778, 199 Cal.Rptr.3d 821), and section 3104 applies a rebuttable presumption that grandparent visitation is not in the best interest of a minor child under other circumstances, including where one parent with sole legal and physical custody objects to such visitation. (§ 3102, subd. (f).) Unlike section 3103, which provides for grandparent visitation during the pendency of marriage dissolution proceedings, section 3104 permits grandparent visitation under certain conditions after the court has entered a judgment dissolving the marriage and awarding child custody. (Harris , supra , 34 Cal.4th at p. 222, 17 Cal.Rptr.3d 842, 96 P.3d 141.)

In Harris , a majority of the California Supreme Court decided which of these two statutes, section 3103 or 3104, applied in circumstances where a court had granted extensive visitation rights to paternal grandparents over the objection of the child’s mother, who had obtained a judgment of dissolution and an order granting her sole custody years earlier. (Harris , supra , 34 Cal.4th at p. 220, 17 Cal.Rptr.3d 842, 96 P.3d 141) It concluded section 3104 governed because the Legislature intended section 3103 to govern grandparent visitation only until entry of judgment dissolving the marriage and awarding custody of the child. ( Id. at p. 222, 17 Cal.Rptr.3d 842, 96 P.3d 141.)

The court reasoned “both statutes contain a rebuttable presumption against grandparent visitation if the parents agree that such visitation should be denied. But only section 3104 also applies a rebuttable presumption against grandparent visitation if the parent granted sole custody of the child objects. The court concluded that the Legislature did not include a similar provision in section 3103 because it would not be needed during marriage dissolution proceedings before a judgment awarding custody had been entered. There would be no need to include such a provision in section 3103 if, as we conclude, a request for grandparent visitation is governed by section 3104 once a judgment has been entered dissolving the marriage and awarding sole custody of the child to one parent.” ( Id. at p. 223, 7 Cal.Rptr.3d 842, 96 P.3d 141.) The court went on to uphold the constitutionality of that section under the federal and California Constitutions. ( Id . at pp. 223-230, 7 Cal.Rptr.3d 842, 96 P.3d 141.)

Section 3103 is Inapplicable to a Great-Grandparent Request.  See  Ed H. v. Ashley C., (Cal. Ct. App. 2017)  221 Cal. Rptr. 3d 911, 918.

If you are a grandparent seeking visitation with your grandparents, I can help you!

Robert Rodriguez has litigated grandparent rights, guardianship cases, juvenile dependency matters as well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights  discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.

* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law.  Robert D. Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.  Robert Rodriguez has practiced in the State of California Court of Appeal.

LEGAL ADVERTISEMENT – Robert Rodriguez Best Divorce & Family Law Attorney in Pleasanton California.