Tue. Apr 16th, 2024
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Do Grandparents Have Visitation Rights?

Grandparents Rights to Grandchildren

Grandparent Visitation Rights (California Family Code 3102)

Are you a grandparent seeking a court ordered visitation with your grandchild? If you are, then it is important that you speak with a Wallin & Klarich  California family law attorney who can evaluate your case and advise you of your legal rights as a grandparent. In California, under Family Code section 3100, the family court may grant reasonable visitation rights to the grandparent of a minor child. The court may grant you reasonable grandparent visitation rights if either parent of a minor child is deceased. Even if neither parent of the minor child is deceased, the court may still grant you visitation rights. In order for the California family law court to grant you reasonable grandparent visitation rights with your grandchild, the court must find that there is a preexisting relationship between you and your grandchild. The court will balance the best interest of your grandchild when determining whether to grant your grandparent visitation request. Also, normally a grandparent cannot request visitation rights with his or her grandchild if the grandchild’s parents are married. However, there are exceptions to this general rule. It is important to note that if you are granted grandparent visitation by the California family law court and the circumstances change where none of the above listed exceptions apply, either parent of your grandchild can request that the court terminate the grandparent visitation order. If the parents request that the grandparent visitation order be terminated, the court must grant the parent’s request and end all of your visitation rights that had been given to you.

How to Ask for Grandparent Visitation in California

In California, the family law court will not automatically give a grandparent any visitation rights with his or her grandchild. In order to obtain grandparent visitation rights, you must first file a petition requesting grandparent visitation rights with the court. If a family law case between your grandchild’s parents has already been filed, such as a divorce or paternity case, you may join that case and ask for grandparent visitation rights. However, if a family law case has not been opened, then you must file a petition requesting grandparent visitation rights and open a case with the family court—in essence, you are starting a new case from the very beginning. Please note that unlike a divorce or paternity case, there is no official court form to petition the court for grandparent visitation. However, some counties provide a local court form that can be used as the petition. But if you happen to live in a county that does not provide a local court form, it is important that you hire an experienced family law lawyer to represent you and draft your petition for grandparent visitation.

Grandparent Visitation Resources:

History of  Grandparent Visitation Rights in California

Historically in California, grandparent visitation has not always been permitted. In recent years, however, family dynamics have changed considerably.  Today households consist of family members of multiple generations. Often grandparents and non-parents are raising, supporting, or caring for children in the family. With the changing landscape, California law has evolved to address California custody and visitation disputes as they pertain to the rights of grandparents.

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. See Family Law Code section 3103.

The key focus in all court decisions involving children is “what is in the best interest of the child?” California Family Law Code Section 3102 allows relatives (including grandparents) visitation over the objection of the surviving parent. If a parent has died, the court will consider both a deceased parent’s wishes and the surviving parent’s decision in approving or denying grandparent’s visitation rights. California law further confirms that grandparents do not lose their rights even when a stepparent adopts their grandchild.

California Family Code Section 3102 is relevant in the common situation where the parents of a deceased parent seek to have visitation rights as to the deceased parent’s child, over the objection of the surviving parent. The visitation rights that the grandparents seek are known as Grandparent Visitation. California Family Code Section 3102 currently allows relative (including grandparent) visitation over the objection of the surviving parent under certain circumstances. The California Supreme Court held that visitation of this nature is proper so long as in awarding visitation, the trial court gives special weight to the surviving parent’s decision in regard to supporting, or not supporting, a child’s relationship with relatives of a deceased parent, while keeping in mind what is in the child’s best interest. (See Hoag v. Diedjomahor (2011) DJDAR 15328) Historically, grandparent visitation did not always seem to be allowed.

Case History of Grandparent Visitation

On its face, Family Code section 3102 allows for a grandparent to have visitation with his or her grandchild where one parent is deceased. The practical application of this statute has been greatly curtailed by the United States Supreme Court case, Troxel v. Granville and its progeny. (Troxel v. Granville (2000) 530 U.S. 57.) As noted below, in cases where the surviving parent is not unfit and offers the grandparent meaningful visitation, the Courts are restricted under the Federal Constitution from entering any visitation order in favor of the grandparent in any fashion whatsoever.

The landmark U.S. Supreme Court case of Troxel v. Granville (2000) 530 U.S. 57  The Courts presume that a parent is the best person to recognize a child’s physical and emotional needs and make choices that serve the child’s best interests. Yet, not all parents are able to recognize and meet a child’s needs. In those cases, a grandparent may want to intervene.

Some form of grandparent rights are recognized in every state. However, there isn’t any federal law regulating grandparent visitation. What this means is that each state has some nuances in its rules governing grandparent rights. The closest thing to a federal grandparent visitation law comes out of the U.S. Supreme Court case Troxel v. Granville. In Troxel, the Supreme Court upheld the constitutionality of a broad grandparent visitation law out of Washington. Although the Washington law was upheld, the Troxel case required a parent’s preferences to be considered before awarding grandparent visitation. Also, under Troxel, grandparent visitation shouldn’t interfere with a parent’s basic rights. Some exceptions apply to the above rules if parents are deemed unfit.

Yes, grandparents can have visitation rights if the court determines that there was a pre-existing relationship between the grandparent and the child that has “engendered a bond,” and that it is in “the best interest of the child” to have a relationship with the grandparent. In plain English, that means that a judge, after hearing the evidence, determines that it is in the best interest of the child to continue to see his or her grandparents. The visitation, of course, has to be reasonable, and the parent(s) still retain the right to make decisions about their child.

As this process can be painful for all concerned, it may be in everyone’s best interest to try to resolve these issues out of court. Mediation between all parties is a good way to discuss the emotional needs and concerns of everyone involved and to work out a mutually agreeable solution. An experienced family law attorney can help you find a mediator that specializes in grandparent-grandchildren issues.

In Troxel, the United States Supreme Court granted review and affirmed the Washington Supreme Court’s decision. The United States Supreme Court found that since the Mother was a fit parent and that Mother “did not oppose visitation, but instead asked that the duration of any visitation order be shorter,” any visitation order would have been an “unconstitutional infringement on [Mother’s] fundamental right to make decisions concerning the care, custody, and control of her [children.]” (Troxel v. Granville, supra, 530 U.S at 71.) The United States Supreme Court did not remand the case for further proceedings and found that since the visitation order violated the constitution, there were no grounds to an enter a visitation order of any kind.  source

Family Code Section 3102 unconstitutional. Relevant California decisions that followed seemed to confirm Family Code section 3102’s unconstitutionality.

In Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242, the California Supreme Court disallowed a trial court order granting visitation to the minor child’s paternal grandparents. The trial court had erroneously dismissed the surviving parent’s concerns about visitation relating to the grandparents’ drinking, swearing, uncleanliness, and the child’s “uneasiness” after visits. The California Supreme Court further confirmed that the surviving parent’s concerns regarding visitation had to be accorded special weight.

In Punsly v. Ho (2001) 87 Cal.App.4th 1099, the California Supreme Court disallowed another trial court order granting visitation to a minor’s paternal grandparents. In this case, the California Supreme Court held that the trial court had erroneously failed to apply a presumption (or assumption) that the surviving parent’s visitation decisions were in the child’s best interest. The trial court was further said to have erroneously dismissed the surviving parent’s concerns about visitation. Punsly discussed the matter of when the surviving parent is to offer the grandparents a visitation opportunity. The grandparents argued that Troxel did not apply since the surviving parent did not offer them a visitation schedule until they had retained counsel. The Punsly court disagreed, noting that the proposal of a visitation plan by the surviving parent was voluntary. The court also noted that what is important for the purposes of awarding grandparent visitation is that the surviving parent offered a visitation plan at all, not the motivation or timing behind this offer. In Punsly v. Ho, the Court reversed the trial court’s decision to order visitation because of the surviving Mother’s “fitness as a parent and her willingness to voluntarily schedule visitation.” (Punsly v. Ho (2001) 87 Cal.App.4th 1099, 1111.) As in Troxel, the appeals court did not remand for further proceedings, but directed the trial court to vacate its order of visitation and enter a new order denying the visitation request altogether. There were no grounds to enter a visitation order of any kind.

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848 is another grandparent visitation case. There the surviving parent’s fitness as a parent had been confirmed. He simply did not want a court-imposed visitation schedule. The California Supreme Court held that the application of Family Code section 3102 to establish a visitation schedule over the surviving parent’s objection violated his fundamental parenting right to make decisions about the care, custody, and control of his daughter. The court came to this conclusion because the surviving parent was fit, had not sought to cut off grandparent visitation completely, and there was no strong evidence against the presumption to favor a fit parent’s parenting decisions.  In Kyle O. v. Donald R., the Court held that “a fit parent…who agreed to allow visitation, had the fundamental right as a parent to prefer flexible unscheduled visitation.” (Kyle O. v. Donald R (2000) 85 Cal.App.4th 848, 863-864.) When the trial court imposed a schedule over the objection of father, the appeals court held that application of Family Code section 3102 “unduly infringed upon [Father’s] fundamental parenting right to make decisions about the care, custody and control of his daughter.” (Id. at 864.) As in Troxel and Punsly v. Ho, the trial court was directed to vacate its order of visitation and enter a new order denying the visitation request altogether. There were no grounds to enter a visitation order of any kind.

In IanJ. v. Peter M., the Court of Appeals held that “requiring unsupervised visitation [over the objection of the surviving parent] unlawfully intrudes on [the surviving parent’s] right to make decisions with respect to [the children’s] well-being…” The Court held that “the grandparents…were required to show clear and convincing evidence that…unsupervised visitation…was in the child’s best interests.” The Court found that since the surviving parent’s concerns about the grandparents were legitimate, the surviving parent’s insistence on supervised visitation had to be respected. Often, we deal with cases where both parents are alive and only one parent objects to grandparent visitation. The law in Troxel doesn’t apply in these types of situation because one surviving parent wants the visitation. This usually results in the grandparents joining the case and receiving some sort of visitation if the court deems it in the best interests of the child.

Grandparent visitation can be quite complicated. If you have questions about grandparent visitation in California, contact our firm and we can help you. source

Historical Lessons Regarding Grandparent Visitation

The lesson of these constitutional decisions is two-fold. First, Family Code Section 3102 is generally valid, but is unconstitutional (invalid) as applied to circumstances similar to those present in each of the above-mentioned cases. Second, as noted in Hoag, grandparent visitation is valid so long as the trial court awards it by giving special weight to a parent’s decision in regard to supporting, or not supporting, a child’s relationship with relatives of a deceased parent, while keeping in mind what is in the child’s best interest.

The California Family Code on Grandparent Visitation

The general provision allowing a grandparent visitation with his or her grandchild can be found under California Family Code section 3100. This section states that the court, in its discretion, may grant reasonable visitation rights to another person having an interest in the welfare of the child. A grandparent can be considered as a “person having an interest in the welfare of the child” because the grandparent is related to the child.

What If One the Parents of Your Grandchild has Died?

If either parent of an un-emancipated minor child (a child who has not been declared liberated from his or her parents parental authority) is deceased, the 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 in the best interest of the minor child. Although you, as the grandparent, may propose a visitation schedule with your grandchild that you believe is reasonable, it is up to the court’s discretion to determine and make a finding of what a “reasonable visitation” is in your case. Additionally, Family Code section 3102 does not apply if the child has been adopted by a person who is not the stepparent or grandparent of the child. Moreover, any visitation rights that were granted before the adoption of the child by a person who is not the child’s stepparent or grandparent will automatically terminate upon the child’s adoption.

Both Parents are Still Living and a Case between the Grandchild’s Parents has already been Filed with the Court

Family Code 3103 states that if there is already a family law case filed between the child’s parents, 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. When pursuing grandparent visitation through a case that already exists between the parents, you must give notice of the petition to the parent, any stepparent, and any person who has physical custody of your grandchild. The notice must be given 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. It is also crucial to note that under Family Code 3103, there is rebuttable presumption (meaning that the presumption can be invalidated) that the visitation of a grandparent is not in the best interest of a minor child if your grandchild’s parents agree that the you should not be granted visitation rights.

What If There Is No Case Filed with the Court

Under Family Code Section 3104, the grandparent must open a case by filing a petition. 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 produced a bond such that visitation is in the best interest of the child; AND 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 for grandparent visitation may not be filed while the natural or adoptive parents are married unless one or more of the following circumstances exist:

  • The parents are currently living separately and apart on a permanent or indefinite basis
  • One of the parents has been absent for more than one month without the other spouse/parent knowing the whereabouts of the absent spouse/parent
  • One of the parents joins the petition with you
  • Your grandchild is not residing with either parent
  • Your grandchild has been adopted by a stepparent

At any time when a change of circumstances occurs, such that none of the above listed circumstances exist, the parent or parents of your grandchild may request that the court terminate your grandparent visitation rights. The court will grant the parents’ request for termination. When opening a new case with the court and requesting grandparent visitation, you must give notice of the petition for grandparent visitation to each of the child’s parents, any stepparent, and any person who has physical custody of your grandchild by personal service. Like Family Code section 3103, 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 of the child agree that you should not be granted visitation rights. Additionally, there is another rebuttable presumption affecting the burden of proof that grandparent visitation is not in the best interest of a minor child if the parent who has been awarded sole legal physical custody of your grandchild in another proceeding, or the parent with whom the child resides if there is currently no effective custody order, objects to grandparent visitation. Lastly, like Family Code section 3104, when a court orders grandparent visitation pursuant to this section, the court, in its discretion, may:

  • Allocate the percentage of grandparent visitation between the parents for purposes of calculating child support under Family Code 4050; AND
  • Order a parent or grandparent to pay to the other, an amount for the support of the minor child. “Support” means costs related to the visitation, such as transportation costs, medical expenses, day care costs, and other necessities related to the basic expenses for the child

A Parent’s Fundamental Right to Raise His or Her Child is Not Unconditional

California Family Code section 3105 provides that a parent’s fundamental right to provide for the care, custody, companionship, and management of his or her children, while compelling, is not absolute. Children have a fundamental right to maintain healthy, stable relationships with a person who has served in a significant, judicially approved parental role. cited

 


Grandparent Visitation Rights

Grandparents can play a crucial role in a child’s life. The importance of the grandparent-grandchild relationship can be to the individual child, how the law views that relationship, and you abilitiy to provide proof of an established healthy relationship then a joinder is for you. A grandparent may be awarded reasonable visitation or custody of a child. Visitation rights permit the grandparent to have contact and/or communication with the child on a regular or scheduled basis. In family law, there are two forms of custody, legal and physical. Legal custody rights grant the custodian the responsibility to make decisions regarding the health safety and well being of the child. Physical custody rights grant the custodian the ability to have the child live with him or her.

Grandparent Visitation Rights: In California, upon petition by a grandparent, the court may grant reasonable visitation rights to the grandparent. First, the court must find that a relationship between the grandparent and grandchild existed prior to the filing of the petition. Second, that relationship must indicate that it is in the best interest of the child to visit with the grandparent. Another important consideration for the court is the parent’s right to make decisions regarding his or her child. Therefore the court balances the child’s interest in having visitation with the grandparent against the parent’s right to exercise parental authority in making a decision.

Grandparent Custody Rights: Before a court will grant custody of a child to a non-parent over the objection of a parent, the court must determine it is detrimental to the child’s best interest to grant custody to the objecting parent. Next, the court will evaluate whether placing the child in the custody of the non-parent will serve the best interest of the child.

If you are a parent concerned about your visitation and custody rights we can provide you with information and guide you through your options. source

GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

some who have strong relationships with their grandchildren may opt trying Third “PRESUMED PARENT” Family Code 7612(C)

In family law cases (as well as “civil” cases generally), either party is allowed to request that the court “join” someone or some entity to the family law case. When the court “joins” a person or entity to a case it has the effect of that person/entity becoming a party to the case. source

In order for a grandparent to seek custody rights of a child they must be joined as a third party.  Grandparent rights are not automatic, but are many times appropriate.  Certain qualifications must be met in order to be able to join as a third party, and then gain physical custody rights.  This is a multi-step process that demands an attorney with experience in the area.


Grandparents’ Rights in California

 

Grandparents have rights to visitation, custody, adoption, and guardianship or their grandchildren. Grandparents also have a right to have their grandchildren financially supported by a parent of a child while the child is in the grandparent’s physical custody; however, grandparents’ rights are not absolute.

This article briefly discusses a grandparent’s rights to custody, adoption, and guardianship of a grandchild, but but the focus of this article concerns grandparents’ rights to visitation and support of a grandchild. For more information on a grandparent’s rights to custody, adoption, or guardianship, please visit those corresponding pages.

For a grandparent to have rights to visitation or support of a grandchild the grandparent must first prove to the family court judge the following:

  • There is a preexisting relationship between the grandparent and grandchild such that has engendered bonds between the grandparent and grandchild, and
  • It is in the best interest of the child to visit his or her grandparent, as balanced against the rights of the parent, or parents of the child.

Thus, if there is no preexisting relationship between the grandparent and the grandchild, or, if it is not in the best interest of the grandchild to visit with his or her grandparents, then the family court judge may deny the grandparents the right to visit with the grandchild.

Also, if the grandchild’s parents are married, the grandparent must also prove at least one of the following factors before a family court judge will entertain grandparents’ rights to visitation and support (one of these factors must be present in addition to the two elements listed above if the child’s parents are married):

  • The parents are not living together
  • The parent’s whereabouts are unknown for at least a month
  • One of the parents joins the grandparents’ petition
  • The child does not live with either parent, or
  • The child has been adopted by a stepparent

Note: If a grandparent has visitation rights established by the famil court, and the situation changes after establishing the grandparents’ rights, and none of the above listed exceptions applies, one, or both, parents can ask the court to end the grandparents’ rights.

Grandparents rights to visitation or support may not be established if the grandchild has been adopted by a person who is not related to the biological mother or father.

Also, before a grandmother or grandfather, or both, may be heard in family court, the court will require all the parties to attend mediation. If the parent, or parents, do not have a good relationship with the grandmother or grandfather, or both, then mediation can be handled in separate sessions so as to avoid any negative conflict between the parties.

Furthermore, establishing grandparents’ rights is the proper vehicle for maintaining visitation with grandchildren. When the mother or father, or both, are dangerous to their child or children, it is better for the grandparents to obtain child custody or a guardianship over the grandchild.

Finally, the grandparent must also prove that visitation is generally being denied by the parent or parents. In other words, if a grandparent typically visits with his or her grandchild a few times a year without objection by the parents then the grandparent will be denied extra visitation by the court. The idea is that if the existing relationship between the grandparent and grandchild consists of very few visits then that is the limit of the bond that has been established between grandparent and grandchild. However, if a parent reduces the number of visits or denies visits altogether then a grandparent can request from the family law judge that the grandchild maintain the level of visits previously enjoyed by the grandparents. If all visits have been denied then the family law judge can establish reasonable visitation.

Grandparents Rights v. Custody of Grandchildren Rights

When we speak of grandparents’ rights we are usually talking about the right to visit a grandchild, or the right to receive child support for your grandchild from the child’s parent or parents. The right to visit with grandchildren does not include the right to make decisions for them. If a grandparent is seeking to have the legal right to make legal decisions for the grandchild then the grandparent may request an order for custody of the grandchild. With custody, the grandparent will have the right, either solely, or jointly with the parent of the child, to make legal decisions on health care, schooling, religious activities, extra curricular activities, and more. It is more difficult to establish legal custody of a grandchild then to establish grandparents’ rights to visitation and support. Child custody issues are covered in more detail under child custody law.

Grandparents’ Rights v. Adopting of Grandchildren

As stated above, grandparents rights to visitation or support does not give the grandparent the right to legal custody of the grandchild. Child custody may sometimes be established for grandparents but that custody is often shared with the parent or parents. If the grandparent seeks to terminate the parents’ rights then an adoption of a grandchild by a grandparent may be requested. An adoption is a complete termination of the parents’ rights. An adoption of a grandchild by a grandparent gives the grandparent all the legal rights to a grandchild that the parent would otherwise enjoy. Adoptions can be complex in terms of procedure and only a qualified adoption and family law attorney should handle these types of cases. Adoptions are covered in more detail under adoption law.

Grandparents’ Rights v. Guardianship Rights

Again, establishing grandparents rights to visitation or support  will not give the grandparent any rights other than the right to visit the grandchild or have the grandchild financially supported while in the physical custody of the grandparent. For this reason, a request for legal guardianship of the grandchild is sometimes preferred. A guardianship is a legal relationship between a minor child and a guardian that gives the guardian certain rights and obligations regarding the child. A guardianship does not sever the legal relationship that exists between a child and his or her biological parents. Instead, it co-exists with that legal relationship, similar to joint legal custody but limited in scope. Guardianships may be temporary or permanent. Guardianships may be used for specific purposes such as to manage a child’s financial affairs or ensure that the child attends school. Usually a grandparent guardian will visit with the grandchild who is protected, also called the ward, but it is not necessary. Guardianships are covered in more detail under guardianship law.

How to File (Petition) for Grandparents Rights

To establish grandparents rights to visitation or support, the petitioner must fill out the proper family law forms and legal documents. Depending on the circumstances, those forms and legal documents can include any or all of the following: FL 100, 105, 300, 311, 341, UCCJEA, Assignment Sheet (usually a local court form), CII criminal background sheet (usually a local court form), Joinder Pleadings, and more. The law and procedure for establishing grandparents’ rights can be difficult to navigate and it is always best to use a family law attorney who is experienced with establishing grandparents’ rights.

We have included much of the pertinent law on grandparents’ rights to visitation and support at the right side of this page. For more information on California grandparent’s rights, guardianships, adoptions, or child custody (legal and physical), please contact the divorce and family law attorneys at Dorado & Dorado, APLC.

Our experienced divorce and family law attorneys have successfully represented hundreds of families in the Inland Empire. Our experience includes representation of grandparents seeking to establish visitation and support of their grandchildren as well as representation of mothers and fathers seeking to sever grandparents’ rights. We are among the largest family law firms in the San Bernardino and Riverside County area. Our consultations are provided at no cost seven days a week. source

Distinguishing Request for Custody from Request for Visitation

FL 3100(a) In making orders [guardianship]…the court shall grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child.

FL 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 child’s best interest…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.

FL 3103(a) Notwithstanding other 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.

FL 3103(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.

FL 3103(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.

FL 3103(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.

FL 3103(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, allocate the percentage of grandparental visitation between the parents for purposes of the calculation of child support, and/or order a parent or grandparent to pay to the other, an amount for the support of the child or grandchild.

FL3104(a) On petition to 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 grandchild that has engendered a bond such that visitation is in the child’s best interest, and 2) balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.

FL3104(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 parent 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 institutionalized.

FL3104(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.

FL3104(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.

FL 3105(a) The law finds and declares, that a parent’s fundamental right to provide for the care, custody, companionship, and management of his or her children, while compelling, is not absolute. Children have a right to maintain healthy, stable relationships with a person who has served in a significant, judicially approved parental role.


Do Grandparents Have Visitation Rights Only If The Parents Are Divorced?

 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.

How Does A Grandparent Petition The Court For Relief?

In most situations, the parents of the child will already have an existing case pending before the court (i.e., dissolution of marriage, or custody/support case). If there is an already existing case, the grandparent must file a Motion for Joinder in order to be “joined” to the pending divorce/custody matter.

Under well-established statutory and case law, any party with physical custody or claiming custody or visitation rights with respect to a minor child of the parties’ relationship must be ordered joined. Under California Rules of Court section 5.24(e)(1):

“[T]he court must order that a person be joined as a party to the proceeding if the court discovers that person has physical custody or claims custody or visitation rights with respect to any minor child of the marriage, domestic partnership, or to any minor child of the relationship.” (Cal. Rules of Court §5.24(e)(1)(a).)

However, “before ordering the joinder of a grandparent of a minor child in the proceeding under Family Code section 3104, the court must take the actions described in section 3104(a). (Cal. Rules of Court §§5.24(e)(1)(b).), i.e.,
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.

If there is no dissolution of marriage or custody/support case pending before the Court, the grandparent must petition the court by filing his/her own individual petition for visitation rights (as opposed to petitioning to be joined to a pre-existing case).

What Are The Benefits Of Having A Grandparent-Child Relationship?

There are countless benefits from having a grandparent involved in a child’s life. First, there is an immediate biological linkage between the grandparent and the child. Second, the presence of grandparents in the formative years of children strongly helps in their character building. Third, grandparents are often the greatest supporters of the child’s interests because of their unconditional love for their grandchild.

Finally, grandparents are often the best teachers in the child’s life when it comes to cultural heritage and family history. Grandparents are a great source of the family history – precious knowledge to have. source


When Access to Grandchildren Becomes an Issue

Grandparents play an important part in enriching the lives of their grandchildren. Sadly, some grandparents are prevented from seeing or spending time with their grandchildren. This can, understandably, be upsetting for both grandchildren and grandparents.

There may be several reasons why grandparents are excluded from the lives of their grandchildren. Examples are an ongoing divorce proceeding between the child’s parents or unresolved issues between the child’s parents and the grandparents.

Unlike parents, grandparents do not automatically have legal authority concerning their grandchildren. The rights of grandparents concerning their grandchildren are determined by the family law in each state.

What are Grandparents’ Rights Concerning Their Grandchildren?

All fifty states have passed laws allowing grandparent visitation rights so long as the grandparents have no issues which could affect the relationship, such as drugs or alcohol abuse.

The majority of state laws also allow child custody rights to grandparents under specific circumstances.

The Visitation Rights Enforcement Law (pdf) ensures that grandparents can see their grandchildren anywhere in the United States, provided that they have grandparent visitation rights in one state.

Many of these grandparent visitation laws also apply to extended family members. They allow siblings and other family members to visit the children. Such laws are frequently referred to as “nonparental” or “third party” visitation rights.

Federal law demands that the courts in each state recognize and enforce nonparental visitation court orders from other states.

Can a Parent Deny a Grandparent Visitation?

Unless there is a justifiable cause, grandparent visitation rights apply even if the parents do not wish for the grandparents to have these rights.

This is because grandparent visitation rights are founded on the assumption that it is in a child’s best interests to have contact with their grandparents.

While most parents accept this, some attempt to interfere with these relationships. Several states have passed laws prohibiting parents from interfering with grandparent visitation rights. source


 

Enforcing Grandparents’ Rights: What You Need to Know

Many states allow grandparents to have visitation rights and, in some situations, custody. Learn about the consequences of parents violating a court order for grandparents to have access to their grandchildren.Grandparents often seek court-ordered visitation or custody when their adult child refuses to allow them to visit with or raise their grandchildren. If a court rendered an order for you, the grandparent, either custody or visitation, and you’re prevented from exercising those rights, you have recourse to enforce the order.

Distinguishing Request for Custody from Request for Visitation

Grandparents May Seek Custody

Grandparents could also request custody of the children, although that will be a much more difficult process. However, sometimes, it would be entirely necessary for grandparents to step in to obtain custody if it is in the best interests of the children. This is not a decision that grandparents should take lightly.

In a custody case, grandparents would need to show that both parents are not fit to raise the child. This would present difficulties because a parent is claiming that his or her own child is an unfit parent. However, grandparents may be left with no choice if there is a history of physical abuse or dependency on substances. Often, it is grandparents who end up having to assume responsibility for the children, both to protect them and enable them to thrive.

The court would consider a petition for custody from the grandparents, but it may be an emotional and raw hearing. The first thing that a grandparent would need to prove through a family lawyer is that the child’s current or proposed living arrangement is either unsafe or not supportive. Possible danger to the child may be the most effective argument that a court would consider. However, grandparents must be careful about coming into court and speculating. They should bring concrete evidence and, possibly, even expert testimony.

How to Get Grandparent Custody Rights

Custody rights for grandparents vary by state. In all cases, the children’s best interests are paramount. Some states, such as Florida, don’t allow for grandparent custody except in rare instances, such as where another state made the order or if the parent gives permission for temporary custody or concurrent custody, which is when the grandparent and parent have custody together.

In New York and California, adoption doesn’t automatically prevent grandparent visitation, so a grandparent can still petition for visitation after adoption.

Can Grandparents Sue for Visitation?

Legally, grandparents can only sue for visitation rights in very specific circumstances. Courts may grant grandparents visitation rights if they have been unduly denied visitation for over 60 days and the child’s parents are getting divorced, one parent restricts visitation after the death of the other parent, or the child lived with the grandparents for 6 months within the 24 months before suing for visitation.

In any family law case involving a child, the child’s best interest takes precedence. Court-ordered visitation will only be granted if the visitation best benefits the child.

In some cases, the child may be asked what their wishes are. The child may also have a court-appointed guardian that acts in their best interest.

It is also important to note that if a child is adopted (by someone who is not a blood relative or stepparent), their grandparent’s right to visitation may be terminated. In this case, you would need permission from the adoptive parents. Also, grandparents cannot file for visitation if the parents are legally married and live together with the child—even if they have been denied visitation.

Can a Parent Deny a Grandparent Visitation?

If the grandparents do not have court-ordered visitation rights, parents can deny them access and visitation. However, if the grandparents have legal visitation rights, parents cannot disobey or ignore court orders. To nullify the orders, parents would need to file a petition to modify or revoke visitation rights with the courts.

Filing for Visitation Rights as a Grandparent

To gain legal visitation rights, grandparents can file a motion for Grandparent Visitation Rights.

Before going to court, you may also consider asking the parents to consider mediation. A request for mediation should also be filed with the court. source

State Custody and Visitation Laws

Some states have no statutes for grandparent custody or visitation. In many states, there is a limited set of circumstances in which a grandparent can obtain custody. Usually, one of the following must apply:

  • One or both parents have died.
  • One or both parents are unfit, often due to neglecting the child, persistent alcohol use, drug use, or a serious physical or mental health illness.
  • The parents have either split up (if unmarried) or divorced.
  • Child protective services has an open case against the parents and need to place the child with someone, preferably a relative.
  • Both parents are incarcerated.
  • The parents named the grandparents as guardians in their wills.

The following may help grandparents get custody if any of these are also true:

  • The child has a strong bond with the grandparents.
  • The child lived with the grandparents for a while.
  • The child wants to live with the grandparents and is mature enough to tell the judge.
  • The parents both agree that the child should live with their grandparents.

In addition to the above, custody must always be in the child’s best interests, or the court will deny the grandparent custody.

Visitation is often against the wishes of the parent when there is a feud between grandparent and parent. In many states, to override refusal to allow visitation, some of the above-listed scenarios also must occur. As with custody, the child’s best interests guide visitation cases.

How to Enforce Grandparents’ Rights

When grandparents have a court order that permits visitation or custody, and the parents refuse to cooperate, grandparents have additional rights in many states. The grandparents must often take their adult child to court, but if there’s an order, many courts will enforce the order.

There are several ways to enforce such an order. Grandparents often do one or more of the following:

  • File a contempt motion or petition.
  • File an enforcement petition.
  • File a violation petition in some states, such as New York.
  • Call the police.
  • Notify their attorney.
  • As a last resort, have the attorney write a demand letter telling the parents to comply immediately. However, this tactic can backfire, as sometimes parents relocate with the children in an attempt to avoid compliance.

How to Bring an Enforcement Action

There are several steps to bringing an enforcement action. Most importantly, you need a family attorney experienced in grandparent visitation or custody cases, as not every family attorney has done them. Due to the complexity in such cases, it is not recommended that you represent yourself, as self-represented individuals often end up losing.

The steps to enforcement are generally the following:

  • Decide what action you’re taking: filing a contempt, enforcement, or violation petition or motion.
  • Fill out the proper paperwork. Your attorney should prepare the papers for you.
  • File the papers with the court clerk.
  • Have the sheriff or process server serve the petition or motion. Some states allow service by mail.
  • Appear at the court date.
  • Prepare to settle the case, mediate, or go to trial.
  • Wait for the judge’s or mediator’s decision.

What Happens If Parents Violate Grandparent’s Rights

Violation of a legal court order can have serious consequences. Contempt actions can require jail time or fines. Parents who continually disobey court orders can have a criminal action started against them.

If parents relocate out of state to avoid the order, the court or attorney will locate them, and the consequences will likely be more drastic. Parents can lose custody rights if they willfully disobey a court order for custody or visitation. The court can issue a warrant for their arrest and also require parents to pay the grandparents’ court costs and legal fees.

While each state is different, grandparents generally can file a contempt, enforcement, or violation petition or motion against their adult children for failure to obey a court order for custody or visitation. Because these cases are often the most difficult cases in family law, consult an attorney before proceeding with your case. source


Custody and Grandparents’ Rights: Here’s What You Need to Know

Grandparents are often surprised to learn about their state’s laws regarding custody of grandchildren. See how you can get custody and what you must prove to get it.There are many different scenarios in which grandparents seek to get custody of their grandchildren. Such cases are often fraught with emotion because the judge has to weigh the parents’ rights and child’s well-being versus the grandparents’ rights and desires.

Distinguishing Request for Custody from Request for Visitation

Grandparents’ Rights to Custody

Grandparents’ rights regarding custody and visitation vary greatly from state to state. While all states allow grandparents to apply for some type of visitation with their grandchild, not all states allow grandparents to apply for custody.

In a nutshell, grandparents do not automatically have custody rights to their grandchild, but they may have the right to petition the court for it, depending on the state and the circumstances. As the grandparent, you need to understand your state’s statutes, as some are permissive while others are restrictive.

How Grandparents Can Obtain Custody

Whether you can get custody of your grandchild, even if your adult child doesn’t permit it, depends on several factors, including where you live. Some states require one of the following situations before granting a grandparent custody:

  • There is an established relationship
  • Either one or both of the parents has passed away.
  • The parents are unfit, with issues such as alcohol or drug addiction, crime, mental illness, neglect, or abuse.
  • The parents are either divorced or are no longer an intact couple.
  • The parents—or one parent, if the other parent’s whereabouts are unknown— agree to have the grandparents take custody.
  • During an investigation by child protective services, custody is given to the grandparents to keep the child safe.
  • The grandchild was already living with the grandparent when another situation occurs, such as a single parent going to prison.
  • The grandchild is old enough to tell a judge they want to live with their grandparents.
  • A court grants joint custody to a young mother and a grandparent until the mother is able to take care of the child herself.
  • Both parents pass away unexpectedly and the grandparents are guardians in a will.
  • The child’s parents have been deemed unfit to retain custody.
  • The child’s parents consent to grandparent custody.
  • The child has lived with a grandparent or grandparents for a year or more.

If the court denies a grandparent custody, they might still get visitation rights, which, although easier to obtain, are also often denied. Custody could be denied for many reasons that have nothing to do with the above scenarios. For example, if the grandparents are unable to drive, they would have trouble taking the child to activities, to the doctor, or to play with friends. Because a judge will choose the most stable situation for the child, they will also want to keep the child in the same school, so the location of the grandparents’ home could also be a deciding factor.

Grandparents Taking Their Adult Child to Court

Most of the above scenarios require grandparents to file a child custody petition in court before obtaining custody. If you can show that you had been actively involved in the child’s life until your adult child interfered, then a judge may allow your case to go to trial.

Getting grandparent custody is extremely difficult in any situation, but it’s even more so when the child’s family is intact. The parents have the right to raise their child as they see fit, and only in rare instances and if it’s in the child’s best interests does a court give custody to grandparents over the parents. In intact families, grandparents may have the right to custody only when the parents are unfit or when child protective services is conducting an investigation.

No matter what the situation, obtaining custody of a grandchild is difficult, particularly if younger family members or close friends of the parents are deemed more suitable as guardians. Additionally, the child may stay with their parents under certain conditions, such as the mother entering addiction rehabilitation. If you’re serious about getting custody, retaining a reputable family attorney is essential because you’ll have to prove that there’s a special circumstance that makes it in your grandchild’s best interest for you to have custody. source

When Can a Grandparent Obtain Custody of a Grandchild?

A grandparent may seek custody of a grandchild when the parent is deceased or unable to care for the child. However, a grandparent loses standing to seek custody of, or visitation with, a grandchild if the grandparent’s interest in the child stems from a person whose parental rights are terminated. For example, if a grandparent’s child loses parental rights to because of abuse or neglect, the grandparent can’t seek visitation with the grandchild.

In one Virginia case, the court denied a grandfather’s request for custody of his grandchild. The child’s mother had died and the grandfather intervened to obtain full custody of the child. The court rejected the grandfather’s request because it wouldn’t serve the child’s best interests. Because the child’s father was able to emotionally and physically provide for the child, he was awarded full custody. source

Consider meeting with a private mediator or counselor first

In mediation, parents and grandparents meet with a neutral person. Look for a family mediator – someone with experience mediating with families. If mediation works out, it can avoid court and is more likely to help you build a better relationship.

If you decide to start a court case, it can often cause tension between you and the child’s parents. And, the judge may not order the visits you want. If the parents are open to mediation, it can be best for everyone.


3103. Grandparent’s rights; custody proceeding

  • (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.

source

 

 

 

  • [i] Cal. Fam. Code § 3102
  • [ii] Cal. Fam. Code § 3104(b)
  • [iii] Cal. Fam. Code § 3104(b); Marriage of Harris (2004) 34 Cal. 4th 210, 211
  • [iv] Cal. Fam. Code § 3103
  • [v] Cal. Fam. Code § 3104(b)(5); Finberg v. Manset (2014) 223 Cal. App. 4th 529, 532
  • [vi] Cal. Fam. Code § 3102(c)
  • [vii] See Punsly v. Ho (2001) 87 Cal. App. 4th 1099, 1108; Kyle O. v. Donald R. (2000) 85 Cal. App. 4th 848, 863; see also Ian J. v. Peter M. (2013) 213 Cal. App. 4th 189, 204.
  • [viii] Marriage of Harris (2004) 34 Cal. 4th 210, 222
  • [ix] Cal. Fam. Code § 3103(a).
  • [x] Cal. Fam. Code § 3103(e), (h); see also Cal. Fam. Code § 8512.
  • [xi] Cal. Fam. Code § 3103(d).

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Family Treatment Court Best Practice Standards

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The PROPOSED Parental Rights Amendment
to the US CONSTITUTION Click Here to visit their site

The proposed Parental Rights Amendment will specifically add parental rights in the text of the U.S. Constitution, protecting these rights for both current and future generations.

The Parental Rights Amendment is currently in the U.S. Senate, and is being introduced in the U.S. House.