Posted by Jeremy Swanson
On March 23, 2016

“Does California Have Grandparent Visitation Rights?”

“Does California Have Grandparent Visitation Rights?”

Grandparent visitation rights are one of the most complicated and hotly contested areas of California family law. The short answer is that yes, such rights exist, but that there are limitations and restrictions and the law has changed several times in the recent past.

The rules for visitation are found Family Code Sections 3100 through 3105. They contain the circumstances and restrictions that the judge will apply in any given case. Here are a few of the common situations:

*If both parents of the minor are still married and living together and oppose the petition for grandparent visitation, it will be denied.

*If the parents are separated, then a petition can be filed. The court will consider two main factors: (1) whether a pre-existing relationship between the grandparent and child exists that has engendered a bond between the grandparent and minor, making visitation in the minor’s best interest, and (2) the balance between parental authority against the interest of the child in having visitation with the grandparent.

*It should be noted that even if the parties are separated, if they agree on opposing visitation rights with a grandparent, there is a rebuttable presumption that visitation would not be in the best interests of the minor, which is a higher burden of proof placed on the grandparent to show the need for visitation. The same presumption applies if a parent who has sole custody objects, or if a parent who the child resides with if there is no actual custody order in place objects.

It is very important to note that because of the burdens of proof (often a raised standard) and the “best interest” of the child test, judges have a lot of discretion in making decisions regarding grandparent visitation. The application of these statutes has not been completely even, and a lot of appeals have occurred as a result of rulings. This is an evolving area of law. Even the United States Supreme Court got involved in the case of Troxel v. Granville (2000) 530 U.S. 57, 120 S. Ct 2054, in which the court found that a test that is simply the “best interest” of the child in grandparent situations is inappropriate and infringes on the Due Process rights of the parents. The California statutes have attempted to address this by having the rebuttable presumption in place that a fit parent makes choices in the best interest of his or her children. How this will be applied as statutes evolve and change is not yet clear.

DISCLAIMER: All legal principles quoted are valid as of the date of writing in the State of California. However, you should NEVER base your actions on a legal article, blog, or internet story, as facts in real life are complicated. You should have your case evaluated by an attorney experienced in the area of law needed for your case. In addition, there are often exceptions and potential changes to results that occur due to facts that you may think are trivial or unimportant. This article should not be taken in any way as legal advice on your specific legal matter.