In California, grandparents may petition for visitation with their grandchildren in certain situations. Here’s an overview of when grandparents may seek visitation and the presumptions their petitions will face.
- When a parent is deceased. A grandparent may be granted reasonable visitation with a child under Fam C §3102 if either parent of the child is deceased and visitation is found to be in the best interest of the child. But visitation won’t be granted if the child has been adopted by someone other than a stepparent or grandparent. Fam C §3102(c).
- When divorce is pending. Under Fam C §3103, a court may grant reasonable visitation to a grandparent if a dissolution or other family law proceeding is pending in which child custody is already at issue, if visitation is in the child’s best interest. Fam C §3103(a). But visitation rights can’t be ordered if doing so would conflict with a right of custody or visitation of a birth parent who’s not a party to the proceeding. Fam C §3103(e), (h). When a grandparent seeks visitation while divorce is pending, there’s a rebuttable presumption that grandparent visitation isn’t in a child’s best interest if the child’s parents agree that the grandparent shouldn’t be granted visitation rights. Fam C §3103(d).
- The parents aren’t married to each other or are married but are living separately. Family Code §3104 allows a grandparent to petition for visitation with his or her grandchild when the child’s parents aren’t married or are permanently separated, if the court (1) finds a requisite bond between the child and the grandparent and (2) balances the grandparent’s interest in visitation against the right of parents to exercise authority over the child. Fam C §3104(a). See Marriage of Harris (2004) 34 C4th 210, 222. Under Fam C §3104, there’s a rebuttable presumption that grandparent visitation isn’t in a child’s best interest if
- the child’s natural or adoptive parents agree that the grandparent shouldn’t have visitation rights; or
- a parent who has been awarded sole legal and physical custody of the child in another proceeding or with whom the child resides (if there’s currently no operative custody order) objects to visitation by the grandparent.
If a court orders grandparent visitation under Fam C §§3103 or 3104, it may apportion a percentage of that visitation time between the parents for child support purposes. The court may also order a parent or grandparent to pay to the other an amount of support for the child or grandchild. See Fam C §§3103(g), 3104(i). In this regard, “support” means visitation-related costs such as transportation and basic expenses for the child or grandchild, such as medical expenses and day care costs.
Note that all the statutes authorizing the family court to order visitation between a child and grandparent are subject to the limitations and conditions derived from a parent’s constitutional, substantive due process right to make decisions on the care, custody, and control of his or her children. The United States Supreme Court has held that a family court may not grant visitation to a nonparent over a parent’s objection without violating a parent’s constitutional rights, absent specific circumstances and procedures that ensure due process. Troxel v Granville (2000) 530 US 57, 65.
For more on the authority and procedure for grandparent (and other third party) visitation, turn to California Child Custody Litigation and Practice, chap 13. This chapter includes a sample petition for grandparent visitation when one parent is deceased.
Check out other CEBblog™ posts on child custody issues.
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