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1. Can a grandparent of a deceased parent get visitation rights when the minor grandchild is adopted?
The grandparent's right to reasonable visitation when the parent of the minor child is deceased depends on who adopts the minor child. If one set of grandparents or a stepparent adopts the child, the court has the discretion to grant visitation to a grandparent from the other side of the family. Family Code § 3102(c)
However, if the child of the deceased parent is adopted by someone other than a stepparent or grandparent, there is no right to visitation by non-parent relatives. In addition, any visitation rights that a grandparent may have been awarded previously under Family Code § 3102(c) terminate automatically when the child is adopted by a stranger. For example, in Huffman v. Grob, 172 Cal. App. 3d. 1153, 218 Cal. Rptr. 659 (1985), the court ruled that relatives of the deceased mother could no longer visit the child who had been adopted by a stranger to the family.
In one case, when one set of grandparents adopted the minor child, the court held in Reeves v. Bailey, 53 Cal. App. 3d 1019, 126 Cal. Rptr. 51 (1975), that the visitation rights previously granted to the other grandparents were not automatically terminated by the adoption. The mother of the child was initially awarded custody in a dissolution action. The mother and child lived with the maternal grandparents, Mr. and Mrs. Bailey. The paternal grandparents, the Reeves, had visitation rights. The Baileys then adopted the grandchild without notice to the Reeves, and refused to allow visitation. The Reeves asked the court to set aside the adoption on the basis of fraud, arguing that the only reason the Baileys adopted the child was to cut off their visitation.
The court refused to undo the adoption just because the Reeves were not given notice of the proceeding. However, it allowed the paternal grandparents the same visitation rights they had before the adoption. The court reasoned that unlike adoption by a stranger to the family, adoption here by grandparents did not change the child's living situation. She still remained in the home of her mother and grandmother. The court explained that if the Baileys felt that the other set of grandparents should not be allowed visitation, "there must be a proper proceeding in which all interested parties may participate to determine if visitation is no longer in the child's best interest or would unduly hinder the adoptive relationship." 53 Cal. App. 3d 1019, 1026. Obtaining the adoption decree alone would not cut off previously awarded visitation rights.
Grandparents who are in close contact with their grandchild and oppose the child's adoption by the other grandparents may participate in the proceeding. In a partially-published opinion, Adoption of Lenn. E., 182 Cal. App. 3d 210, 227 Cal. Rptr. 63 (1986), the Fifth District of the California Court of Appeals held that the trial court properly allowed the maternal grandparents to intervene because their presence would "effectuate the fundamental purposes of the adoption proceeding." 182 Cal. App. at 219. In Lenn E., the father was arrested for murdering his ex-wife. He arranged for their son, Lenn, to be placed with his parents. The maternal grandmother became Lenn's legal guardian. The father was then convicted and sentenced to death for the murder. Lenn's maternal grandparents frequently visited Lenn until hostility developed when both sets of grandparents wanted to adopt the child. The trial court dismissed the maternal grandparent's adoption petition, but it allowed them to intervene in the paternal grandparents' action and testify regarding the child's best interests. The trial court granted the paternal grandparent's petition for adoption.
On appeal, the court upheld the paternal grandparent's adoption, but concluded in the published section of its opinion that the maternal grandparents had standing to appeal the adoption, in part because they could present information that could guide the court in determining the best interest of the child.
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