Understanding Grandparent Visitation Rights

Grandparents can play a critical role in their grandchildren’s lives, developing deep bonds with them from a very young age. When a family restructures due to death, divorce, or remarriage, a grandparent may worry about how it will impact their relationship with their grandchildren. Understanding grandparents’ rights to maintain relationships with their grandchildren is vital to preserving established family connections.

Despite the standard reference to a grandparent’s right to visitation, more than simply being a grandparent is needed to acquire legal visitation rights. Indeed, the purpose of enacting laws related to “grandparent rights” is actually to protect the child’s best interests and ensure the continuation of an already established relationship, the loss of which would be detrimental to the child.

The Legal Framework

The right to see one’s grandchild is not absolute. In the seminal case of Troxel v. Granville, 530 U.S. 57 (2000), the United States Supreme Court affirmed that parents have a fundamental right under the Fourteenth Amendment to oversee the care and control of their children. This presumptive right includes the ability to limit with whom their children interact. Only a compelling interest will suffice to overcome this presumption.

A grandparent’s right to visit with their grandchild may be ordered only in the following three circumstances, each with its standard of proof to be met by the grandparent seeking visitation. Outside these three circumstances, the Court cannot order grandparent visitation.

1. A Parent is Deceased: If the legal parent of a minor child passes away, the Court may order grandparent visitation if it finds that such visitation is in the minor child’s best interest. The Court will consider the prior frequency and quality of contact between the grandparent and grandchild.
2. Ongoing Custody Case Where Initial Custody and Visitation Orders Will Be Made: If parents are already involved in a custody and visitation matter regarding their child, such as when married parties divorce or unmarried parties seek a formal custody arrangement, a grandparent may be granted reasonable visitation with the child if the Court finds that visitation is in the best interest of the minor child. Suppose both parents agree that the grandparent should not have visitation. In that case, the grandparent must rebut the presumption that their visitation is “not” in the child’s best interest.
3. Limited Other Circumstances:

This final category allows grandparents to request visitation in the following situations:

1. The parents are unmarried and living apart.
2. The parents are married and living separately on a permanent or indefinite basis.
3. One parent has been absent for over a month, and the other does not know where that parent is.
4. One parent joins the grandparent in their request for visitation.
5. The child lives with neither of their parents.
6. A step-parent has adopted the child.
7. One of the parents is incarcerated or involuntarily institutionalized.

Under this final category, the Court must find two specific requirements:  First, the Court must find a preexisting and established relationship between the grandchild and the grandparent seeking visitation. This relationship must have already engendered such a deep bond between the grandparent and grandchild that visitation is in the child’s best interests. Second, the Court must balance the child’s interest in having visitation with the grandparent against the rights of the parents to exercise their parental authority.

All of the categories above require a Court to consider the child’s best interests in maintaining a relationship with their grandparent. They do not create the right to establish a relationship between a grandparent and grandchild that does not already exist.

Procedure for Making the Request

Grandparents seeking visitation rights in California must file a Petition for Visitation. When a case is ongoing, the grandparent must request a joinder to the pending case. In addition to the Petition, a Request for Order must be filed, and the parties must meet with the local child custody recommending counselor before the Judge can decide on the request. The minor child may also be interviewed regarding their relationship with their grandparent and their desire to see them regularly. Whether you are seeking or opposing an order for grandparent visitation, it is advisable to seek competent legal counsel familiar with this area of law before filing any documents with the Court.

Conclusion

Grandparent visitation rights in California serve to maintain preexisting meaningful relationships between grandchildren and their grandparents. Ultimately, prioritizing the child’s best interests is paramount in any decision regarding visitation rights.

If you are a parent or grandparent navigating the complex issue of grandparent visitation rights, Laughlin Legal can provide clarity, support, and guidance.