Unfortunately, many parents and their adult children, their children’s spouses, significant others, or domestic partners have strained relationships. This fact of life becomes even more exacerbated when grandchildren are involved and parents try to deny grandparents a relationship with their grandchild or grandchildren.
California has worked to address all of these common issues through the enactment of the Family Code, Sections 3102-3104. However, even under these statutes, there are limitations on the visitation rights of grandparents with their grandchildren. The following discusses the current status of grandparents’ rights under California law.
A. RIGHTS OF GRANDPARENTS WHEN THE FATHER OF AN UNMATCHED MINOR CHILD DEATHS:
1. Family Code Section 3102 states that: “If either parent of an unemancipated minor dies, the… parents of the deceased parent may receive reasonable visitation with the child during the child’s minority if determined that the visit would be in the best interest of the child…”
2. WARNING: Even if, upon the death of the parent of a minor child, and the Court grants visitation rights to the grandparents, if the surviving parent remarries, AND the new spouse adopts the minor child, the grandparent’s right to continue visitation with the grandchild or grandchildren can, and will be, fired IF both the adoptive parent and stepparent no longer want the grandparent to have continued visitation.
B. RIGHTS OF GRANDPARENTS WHEN THE PARENTS OF A MINOR CHILD ARE STILL MARRIED:
1. Family Code Section 3104 states that a petition to establish grandparental visitation rights MAY NOT be FILED while the natural or adoptive parents are married UNLESS one or more of the following circumstances exist:
a) The parents are currently living apart and separated permanently or indefinitely; EITHER
(b) One of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse; EITHER
c) One of the parents joins the petition with the grandparents; EITHER
d) The minor child does not reside with either parent; EITHER
e) The child has been adopted by a stepfather.
2. If any of the five (5) exceptions exist, then the grandparent may file a petition to establish grandparent visitation rights.
3. The grandparental petition MUST be served on each parent of the minor child, any stepparent of the grandchild, and any person having physical custody of the grandchild for PERSONAL SERVICE.
4. WARNING #1: Even if the conditions initially allow a court to consider a petition for grandparental visitation, when the grandchild’s parents are still married, in the event that, at any later time, the qualifying conditions cease if it exists, the parent or parents of the grandchild may move the Court to terminate grandparent visitation, and the Court WILL GRANT THE TERMINATION (Family Code, 3104(b)).
5. WARNING #2: If BOTH parents or the adoptive parents agree that the grandparent should not be granted visitation with the grandchild/grandchildren, there is a “rebuttable presumption” that visitation from a grandparent IS NOT in the best interest of the grandparent. a minor child (Family Code 3104(e)).
C. RIGHTS OF GRANDPARENTS WHEN THE PARENTS OF A MINOR CHILD ARE DIVORCED, LEGALLY SEPARATED, OR WHEN A SENTENCE OF NULLITY HAS BEEN GIVEN:
1. Family Code Section 3103 states: “…in a proceeding described in Section 3021 (eg, dissolution of marriage, annulment of marriage, legal separation), the Court may grant reasonable visitation to a grandparent of a minor child of one of the parties the procedure if the court determines that the visits of the grandparents are in the best interest of the child..”
2. Notice of the request for grandparent visitation rights MUST be given, by certified mail, return receipt requested, to each parent of the grandchild, to any stepparent, and to any person having physical custody of the child.
3. The Court may grant reasonable visitation rights to grandparents IF the Court does BOTH of the following:
a) Determines that there is a pre-existing relationship between the grandparent and the grandchild that has engendered a bond such that the visit is in the best interest of the child; AND
b) It balances the child’s interest in having visits with the grandfather against the right of the parents to exercise parental authority.
4. CAUTION #1: If BOTH parents of a minor child agree that visitation rights should not be granted to grandparents, it creates a rebuttable presumption, affecting the burden of proof, that visitation of a grandparent IS NOT in the best interest of a minor child (Family Code 3103(d)).
5. WARNING #2: If a parent in a divorce, legal separation, or annulment proceeding has been awarded SOLE legal AND physical custody of the minor child(ren), and that parent objects to parental visitation, grandparents, this will also create a rebuttable presumption, affecting the burden of proof, that visitation by a grandparent IS NOT in the best interest of the child (Family Code 3104(f)).