Sadly, 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 there are grandchildren involved, and the parents attempt to deny the grandparents a relationship with their grandchild or grandchildren.
California has endeavored to address this all to frequent problem by the enactment of Family Code, Sections 3102-3104. However, even under these statutes, there are limitations on grandparent’s rights to visitations with their grandchildren. Discussed below is the current state of grandparent’s rights under California law.
A. GRANDPARENTS’S RIGHTS WHERE THE PARENT OF AN UNMARRIED MINOR CHILD IS DECEASED:
1. Family Code, Section 3102 provides that: “If either parent of an unemancipated minor child is deceased, the…parents of the deceased parent may be granted reasonable visitations with the child during the child’s minority upon a finding that the visitation would be in the best interests of the minor child…”
2. CAVEAT: Even if, upon the death of a minor child’s parent, and the Court granting of visitation rights to the grandparents, should the surviving parent remarry, AND, the new spouse adopts the minor child, the grandparent’s right to continued visitation with the grandchild or grandchildren can, and will be terminated, IF both the parent and adoptive stepparent no longer wish the grandparent to have continued visitations.
B. GRANDPARENT RIGHTS WHERE THE PARENTS OF A MINOR CHILD ARE STILL MARRIED:
1. Family Code, Section 3104 provides that a petition to establish grandparent 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 separate and apart on a permanent or indefinite basis;OR
b) One parent has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse;OR
c) One parent joins in the petition with the grandparents;OR
d) The minor child is not residing with either parent;OR
e) The child has been adopted by a stepparent.
2. If any of the five (5) exceptions exist, then the grandparent may file his/her/their petition to establish grandparent visitation rights.
3. The grandparent’s petition MUST be served on each parent of the minor child, any stepparent of the grandchild, and, any person who has physical custody of the grandchild by PERSONAL SERVICE.
4. CAVEAT #1: Even if the conditions initially allowing a Court to entertain a petition for grandparent visitations, when the grandchild’s parents are still married, should, at anytime thereafter, the qualifying conditions cease to exist, the grandchild’s parent or parents may move the Court to terminate grandparent visitations, and, the Court SHALL GRANT THE TERMINATION (Family Code,3104(b)).
5. CAVEAT #2: If BOTH parents or adoptive parents agree that the grandparent should not be granted visitations with the grandchild/grandchildren, there is a “rebuttable presumption” that the visitation of a grandparent IS NOT in the best interests of a minor child (Family code 3104(e)).
C. GRANDPARENT RIGHTS WHERE THE PARENTS OF A MINOR CHILD ARE DIVORCED, LEGALLY SEPARATED, OR WHERE A JUDGMENT OF NULLITY HAS BEEN ENTERED:
1. Family Code, Section 3103 provides: “..in a proceeding described in Section 3021 (eg dissolution of marriage, nullity of marriage, legal separation), 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 interests of the child..”
2. Notice of the grandparent’s petition for visitation rights MUST be given, by certified mail, return receipt requested, to each parent of the grandchild, any stepparent, and, to any person who has physical custody of the child.
3. The Court may grant reasonable visitation rights to the grandparent IF the Court does BOTH of the following:
a) 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 interests of the child;AND
b) Balances the interests of the child in having visitations with the grandparent against the right of the parents to exercise their parental authority.
4. CAVEAT # 1: If BOTH parents of a minor child agree that the grandparent should not be granted visitations rights, a rebuttable presumption is created, effecting the burden of proof, that the visitation of a grandparent IS NOT in the best interest of a minor child (Family Code 3103(d)).
5. CAVEAT # 2: If one parent in a divorce, legal separation, or nullity proceeding has been awarded SOLE legal AND physical custody of the minor child/children, and, that parent objects to visitation by the grandparent, this also will create a rebuttable presumption, affecting the burden of proof, that visitation of a grandparent IS NOT in the best interests of the minor child (Family Code 3104(f)).
