Archive for April, 2021

Grandparent Visitation Rights Under California Law

April 7th, 2021

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)).

Grandparents As Parents? Know Your Grandparenting Legal Rights

April 7th, 2021

Unfortunately, there are many reasons and circumstances that may prompt a grandparent to want to know what rights they have with their grandchildren. Grandparent’s legal rights may be harder to establish than you think.

There was a case in 2000, Troxel vs. Granville, where the United States Supreme Court ruled that fit parents should be given more deference about whom their children see on a regular basis, including relatives like grandparents. This ruling has made it more difficult, but not impossible, for grandparents to get court-ordered visitation with grandchildren. As put by Justice Sandra Day O’Conner in regard to the ruling,”[S]o long as a parent adequately cares for his or her child (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.”

While grandparent’s rights took a bit of a hit with this ruling, it did provide for cases where the grandparents can prove that they have a really strong relationship with the grandchildren and/or had the children living with them and raised them for a few years before custody was returned to the parents. Grandparents as parents are becoming more common.Of course, trying to prove the strong relationship and show that it would be detrimental to the child to not see the grandparents can be tricky. Simply missing the grandparents on the part of the children is not enough. There needs to be evidence that it would be harmful for the children to be denied visitation with their grandparents.This burden of proof that is on grandparents varies from state to state, and while most still give grandparents rights consideration, there can be many hoops to jump through.

After the Troxel ruling, the burden of proof on grandparents became even heavier. Keep in mind though, that if the parent allows the grandparents to see the grandchildren on a regular basis, even if infrequently, then the courts will not often interfere. If the parent does not allow or regularly exercise visitation, that is when the court may step in and grant visitation for the grandparents. Of course, in instances where the parents agree to custody of the children by the grandparents, then the grandparent’s rights are on much steadier ground. However, while it may be tempting to let the situation be an informal matter without legal recourse, grandparents may find that if the situation ever changes then they may end up in court anyway. If grandparent’s legal rights are not supported with legal documentation, then the parents could possible come back at a later date to claim the children, which could be distressing for everyone. Grandparents may want to seek custody or guardianship of the grandchildren. This will help in many situations. For instance, enrolling the child in school, making medical decisions and for insurance coverage, guardianship or custody may be necessary. In many instances, it’s best to protect grandparent’s rights by seeking some kind of documentation that establishes the legal boundaries of the grandparent/grandchild.