Visitation Rights of Grandparents
Grandparents often feel left behind when a custody case ensues. This can be very difficult for the grandparents involved, especially when they have been an integral part of a child’s life or when they have had a role in raising a child. Grandparents don’t actually have custody “rights” to a child. However, California courts do attempt to protect grandparents in certain circumstances where visitation would be in the best interests of the child.
In California, visitation between grandparents and children may be granted pursuant to Family Code Section 3103 which states in part that “notwithstanding any other provision of law, 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.”
In order to grant visitation to a grandparent over a parent’s objection, according to Family Code Section 3104, the court must find that there is a preexisting relationship between the grandparent and the grandchild, such that visitation would be in the child’s best interest and the court must also balance the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority. The balancing of interests is important because as California case law has made clear, parents have a fundamental constitutional right to make decisions concerning the care, custody and control of their children. There is also a presumption that a “fit” parent will act in the best interest of their child. Thus, where a “fit” parent objects to his or her child having visitation with a grandparent, the court must find that the interest of the child in having visitation with a grandparent outweighs the parent’s right to exercise their parental authority.
Grandparents may only petition the court for visitation under certain circumstances and they cannot normally request visitation from a court when the natural or adoptive parents remain married. There are some exceptions to this rule which are set forth in Family Code Section 3104, including: “(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.”
In determining whether visitation with a grandparent is in the best interests of a child, a Judge will consider a variety of factors, but the most important factor is likely the strength of the preexisting relationship between the child and the grandparent. For example, where a child has lived with a grandparent for a significant portion of his/her life or where a grandparent has been a primary caretake, the court would most likely grant visitation because it very likely be in the child’s best interest to continue that relationship, absent any safety concerns. The court will also consider any history of domestic abuse by the person seeking visitation, whether either of child’s parents is deceased, any drug or alcohol abuse by a person seeking visitation and the child’s health, safety and well-being. If a child is over fourteen years old, the court will also consider the child’s wishes as it relates to a desire to have visitation with their grandparents.
This is clearly a complicated area of California law and can often be very emotional for grandparents. At Argyris Mah, LL, we can advise you on your rights as grandparents and the process required to establish visitation with your grandchildren.