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:
- Resources for Grandparents from the AARP
The History of Grandparent Visitation
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
The landmark U.S. Supreme Court case of Troxel v. Granville (2000) 530 U.S. 57 seemed to disallow grandparent visitation rights, noting that parents have a “fundamental right…to make decisions concerning the care, custody, and control of their children”. The Troxel court found, among other things, that in that case, the surviving parent was a fit parent, the surviving parent’s determination of what is in the best interest of the child had special weight, and the surviving parent had allowed “meaningful visitation” to the grandparents. The Troxel decision appeared to make 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. 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.
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.
FREQUENLY ASKED QUESTIONS ABOUT GRANDPARENT VISITATION
1. What is grandparent visitation?
Grandparent visitation occurs when a grandparent seeks visitation with his or her grandchild on specific days and times. Such visitation is permitted under California law. Upon making certain findings, the court may grant a grandparent’s request for visitation and will issues a court order. The court will require both the grandparent and the minor child’s parents to be in compliance with this order.
2. What do I have to prove in order to obtain grandparent visitation?
In California, in order to obtain visitation with your grandchild, the court must find a preexisting relationship between you and your grandchild that has produced a bond such that visitation with your grandchild would be in your grandchild’s best interest. The court must also balance the best interest of your grandchild having visitation with you against the rights of your grandchild’s parents. Once the court makes the finding that visitation would be in the best interest for your grandchild and balances that best interest against the rights of your grandchild’s parents, the court may grant reasonable grandparent visitation. It is in the court’s discretion to determine what kind of visitation is reasonable.
3. Will the Court grant a parent’s request that there be no grandparent visitation?
Not necessarily. A court will take into consideration a parent’s request to deny grandparent visitation. However, the court will make a decision based on what is in your grandchild’s best interest. California has a statute that addresses this issue. Family Code Section 3105 states that a parent does not have an absolute right right to provide for the care, custody, companionship, and management of his or her children. Although the parent’s right to raise their child is compelling, it is not absolute. Moreover, a child has a fundamental right to maintain a healthy and stable relationship with their parent.
California Family Law Attorney
Your ability to be granted visitation rights to your grandchild depends on the legal arguments you present to the court. Thus, it is important that you have an experienced California family law attorney by your side. For over 30 years, the skilled family law lawyers at Wallin & Klarich have dealt with numerous grandparent visitation cases. We have the necessary experience you need to achieve the best possible result in your case. With offices located in Los Angeles, Orange, Riverside, San Bernardino, San Diego, Victorville, West Covina, Sherman Oaks, Torrance and Ventura , there is a Wallin & Klarich attorney available wherever you happen to live. To speak with an experienced California grandparent visitation attorney about your case, call us at (888) 749-7428. We will get through this together.