February 19, 2014 By Paul Wallin

A recent California family law case allowed a grandparent’s appeal for visitation rights to go forward. In this case, a paternal grandmother petitioned for visitation with her grandson, who was adopted by his stepfather.

Your grandparent visitation rights are not necessarily lost after a stepparent adoption.
You may still be entitled to grandparent visitation rights even after a stepparent adoption.

The child’s mother and stepfather objected to the grandmother’s petition, citing the mother’s divorce from the child’s father and termination of the father’s parental rights. The mother and stepfather filed a restraining order against the grandmother.

The grandmother’s attorney filed a petition under Family Code Section 3104(b)(5), which limits grandparent visitation rights when the parents are married and living together, but has an exception when “the child has been adopted by a stepparent.”

A trial court found that the grandmother could not pursue her petition, stating that Family Code Section 3104(b)(5) violated equal protection principles because it does not rationally distinguish between nuclear families with biological parents and families with adoptive parents.

However, the grandmother appealed. An appellate court found Family Code Section 3104(b)(5) does not violate the equal protection clauses of the federal or state Constitution and the grandmother could move forward with her petition.

Do Grandparents Have Visitation Rights? (California Family Code Section 3100)

In California, grandparent visitation rights are a black and white subject, they may or may not have a legal right to visitation with their grandchildren. Under Family Code Section 3100, a grandparent can ask the court to grant reasonable visitation with a grandchild. To grant a grandparent reasonable visitation with a grandchild, the court must:

  • Find that there was a pre-existing relationship between grandparent and grandchild that has “engendered a bond.”
    • When the court finds that such a bond exists between grandparent and grandchild, the court can find that visitation between the two is in the best interest of the child; and
  • Consider both the best interest of the child in having visitation with a grandparent and the rights of the parents to make decisions for their child.


Under What Circumstances Are Grandparent Visitation Rights Granted?

The family court will ultimately decide whether or not to grant a grandparent's visitation rights
There are certain circumstances when grandparent visitation rights are granted.

Grandparent visitation rights may be ordered in limited circumstances when a parent is deceased (Family Law Section 3102), when custody proceedings are pending (Family Law Section 3103), or when the parents are unmarried or certain other conditions exist (Family Law Section 3104).

The grandmother in the case highlighted above filed her petition under Family Code Section 3104(b)(5). Section 3104(b) limits the circumstances in which a grandparent can file a petition if the parents are married, unless the following circumstances exist:

  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.; or
  5. The child has been adopted by a stepparent.


Do I Have to Go to Court for My Grandparent Visitation Rights?

It may be in the best interest for you and your family members to resolve this dispute out of court to avoid court costs and further family strife. However, it is understood that family discord could prevent peaceful mediation.

An experienced Walling & Klarich family law attorney may be able to work with all parties on a reasonable visitation schedule agreeable for everyone. A court battle may be avoided with a written agreement that lays out the schedule and terms of the visitation.

Call the Southern California Family Law Attorneys at Wallin & Klarich

If you or a loved one wants to establish grandparent visitation rights, it is critical that you speak to an experienced family law attorney. At Wallin & Klarich, our attorneys have over 30 years of experience successfully handling cases regarding grandparent visitation rights in Southern California. Our attorneys will fight to get you the best possible outcome in your case.

With offices in Los Angeles, Sherman Oaks, Torrance, Tustin, San Diego, Riverside, San Bernardino, Ventura, West Covina and Victorville, there is an experienced Wallin & Klarich family law attorney near you no matter where you are live or work.

Call us today at (888) 749-7428 for a free phone consultation. We will get through this together.

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