Grandparenting

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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)).

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Tags: California Law

Grandparent Rights – A Precious Bond Should Not Be Broken

February 7th, 2021

A PRECIOUS BOND: Should Not Be Broken
The bond between grandparent and child is precious and should not be unnecessarily broken.

While there is no doubt grandparents suffer greatly from broken hearts when separated from grandchildren, the kids also feel frustration, helplessness, and bereft of an important part of their future. Often the greatest source of grief for grandparents arises from concern for the child: the impact on that child when a beloved grandparent is abruptly removed from their life. Grandparents wonder: “Do they feel abandoned?” “Unloved?” “Will they think that it is somehow their fault?”

The grandparent-grandchild relationship is its own entity, built on a foundation of unconditional love and mutual affection. It is no secret that grandparents are of vital importance to a child’s life. Think of your own bond with your grandparents.

The enactment of grandparent visitation laws, which provide a way to actively advocate on behalf of a child supports that notion. Grandparent laws are meant to preserve and protect the grandparent-grandchild relationship, bestowing upon the grandparents a position in a court of law to stand up for a child and lend them a voice. Children deserve to have all of the love they can get, and keep it. When a child is unreasonably denied that love, there is bound to be negative consequences.

There is a body of research indicating that when children lose access to a loving adult (such as a grandparent) with whom they have had an established relationship, they suffer abandonment issues, lower self-esteem, emotional disorders, acting out behavior or withdrawal. Dr. Glenn Cartwright of McGill University is a foremost authority in PAS, (Parental Alienation Syndrome) which also effects grandparents through association. I refer to it as GAS (Grandparent Alienation Syndrome). In his article, “Expanding the Parameters of Parental Alienation Syndrome”, Dr. Cartwright discusses the short, medium and long-term effects of PAS. Besides the non-custodial parent, the grandparents also experience anguish over the loss of the child through sudden dismissal. He explains that during the first stage when the child experiences the loss of a grandparent and or parent it is similar to a death, only worse than an actual death because the child is unable to acknowledge or mourn the loss, and it becomes a major tragedy. When the child is subjected to continual denigration of grandparents by the alienating parent(s), all of the fond memories of them are “deliberately and systematically destroyed.”

The medium term effects concern the continued absence [as opposed to initial loss] of the lost grandparent [and parent] and the effects it has on the child’s development. What is lost is the consistency, the day-to-day interaction, love and support that normally flows from grandparents and parents. Dr. Cartwright states, “While in the case of death such a loss is un-avoidable, in the case of PAS such a loss is entirely avoidable and therefore in-excusable.”

For the long-term effects, Professor Cartwright suggests “that everyone involved in PAS suffers some degree of distress over the long term.” He compares the feelings parents and grandparents experience as being similar to what is experienced when a child goes missing. Professor Cartwright emphasizes that it is the child who suffers most.
Dr. Eleanor Willemsen, professor of developmental psychology at Santa Clara University, in her article “Best Interests Of a Child”, describes the effects on a child when attachments are broken, among them loss of security and abandonment issues. She emphasizes the harm that happens “when a child loses ongoing intimate relationships,” and there is evidence that over time a child’s social skills diminish, they become insecure and there are cognitive effects. Perhaps Dr. Willemsen said it best in the following sentence: “[T]he most important aspect of being a whole person when you are a small child is your opportunity to develop well.”

GRANDPARENT VISITATION RIGHTS are equally CHILDREN’S RIGHTS: a child should also have the right to remain connected to grandparents. It is an ongoing struggle of many individuals who work to promote the preservation of the family unit by influencing legislation and the public. These GRANDPARENT RIGHTS STATUTES will bring to the forefront the fact that children are often treated as “property,” with little concern for their wants and needs. There is a need for child substantive issues; a child’s LIBERTY INTERESTS must be represented and no longer ignored. Children are people, not possessions.