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Manual for Grandparent-Relative Caregivers and Their Advocates:
About
Introduction
Guardianships
Dependency Proceedings
Getting a Child out of a Shelter
Visitation Rights of Grandparents
When Permanent Custody is Necessary
Adoption
Foster Care
Public Benefits
Relative Caregivers Options Chart
School Issues
Statewide Listings for County Boards of Education
Resource Guide Statewide
Resource Guide Northern California
Resource Guide Central California
Resource Guide Southern California
 
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Visitation Rights of Grandparents
  1. How do courts decide cases involving the care of children?
  2. Can a grandparent get visitation rights when the parents divorce, legally separate, or get an annulment?
  3. What must I do to get visitation?
  4. Why does the court order mediation?
  5. What will happen at the mediation?
  6. Do I have visitation rights in these proceedings if I am not the child's grandparent?
  7. What if I already have an order giving me visitation rights with my grandchild and the parent is trying to undo the order to prevent my visits?
  8. Can a grandparent whose own daughter or son has died be granted visitation rights with the grandchild?
  9. Under what other situations might a grandparent be granted visitation?
  10. How are a grandparent's visitation rights affected when his or her adult child's parental rights are terminated?
  11. What visitation rights does a grandparent have when the parents of the minor child were not legally married?
  12. If grandparents suspect that the child's father is not the real father, can they challenge his paternity?

The laws that govern the relationship between grandparents and their minor grandchildren are complicated. This chapter explains the California statutes pertaining to grandparent visitation and what some California courts have said about the custodial and visitation rights of grandparents and other non-parent relatives.

1. How do courts decide cases involving the care of children?

The law states that decisions about child custody or visitation must be made with the best interests of the child. This is the controlling standard in guardianship proceedings, adoption proceedings, visitation rights, and other legal arrangements.

The trial court has wide discretion in deciding what outcome is in the best interest of the child. Family Code § 3040(3)(b) What this means is that judges have a lot of leeway in applying the best interest test and are not confined to strictly following a narrow set of rules to a wide range of circumstances. It also means that if you appeal the judge's decision, it will be difficult to convince a higher court to reverse that decision as an "abuse of discretion."

2. Can a grandparent get visitation rights when the parents divorce, legally separate, or get an annulment?

Under California Family Code § 3103(a), a grandparent can request reasonable visitation rights in dissolution (divorce), separation, or nullity proceedings involving the parents of the minor child.

3. What must I do to get visitation?

You must file a petition during the proceedings described above. In addition, the law requires that a grandparent who requests visitation must participate in mediation proceedings. Family Code § 3171(a)

4. Why does the court order mediation?

The court is required to consider the best interests of the child. That goal is reached by reducing acrimony or conflict within the family. The counselor or mediator tries to work out a settlement of visitation rights of all the parties that is to this end.

5. What will happen at the mediation?

These proceedings are regarded as confidential and are held in private. The mediator can decide to keep attorneys out of the meeting. Family Code § 3182(a) Also a natural or adoptive parent who is not a party to the dissolution action does not have to participate in the mediation. But if he or she decides not to take part in mediation, that parent cannot then contest the settlement. Family Code § 3171(b)

The mediator has the power to make a recommendation to the court as to the visitation of the child. Family Code § 3183(a) If the mediator is unable to get all the parties to agree on a settlement, the mediator may recommend an investigation or other action before a court hearing will be set to settle the visitation dispute. Family Code 3183(b)

The court will apply the best interest of the child test in deciding whether or not to grant visitation rights to the grandparent. If the grandparent requesting visitation has any domestic violence orders against him or her, the court must take this factor into account. Family Code § 3103(b) Grandparents should also note that the statute contains a rebuttable presumption that grandparent visitation is not in the child's best interest if the parties to the marriage agree that the grandparent should not be awarded visitation. Family Code § 3103(d) In that situation, it is up to the grandparent to present evidence disproving what the court is accepting as fact—that it is in the child's best interests not to visit with the grandparent.

6. Do I have visitation rights in these proceedings if I am not the child's grandparent?

Family Code § 3103 expressly applies to grandparents. However, non-parent caregivers may be granted, at the court's discretion, reasonable visitation rights, or to any other person "having an interest in the welfare of the child." Family Code § 3100(a)

7. What if I already have an order giving me visitation rights with my grandchild and the parent is trying to undo the order to prevent my visits?

The court must apply the best interest test in deciding whether or not a grandparent who was previously awarded visitation can continue to see the child. Given that there is no objective formula to determine the child's best interests, courts have ruled both in favor of and against continuing grandparent visitation.

Where the parents vehemently opposed visitation and hostility between the parents and grandparents was upsetting to the child, the court cut off the grandparent's visitation rights. In Adoption of Berman, 44 Cal. App. 3d 687, 118 Cal. Rptr. 804 (1975), the parents were separated and the children had lived with their maternal grandparents off and on for two years. During this time, the mother of the minor children became ill and died. The day after the mother died, the children's father agreed that the maternal grandparents should be the children's temporary guardians. However, within a few weeks, the father remarried and had the guardianship order dissolved. Although the court gave the grandparents visitation rights, the father and his new wife refused to allow visits. The new wife adopted the children without telling the grandparents. Relations between the grandparents and the father and stepmother became very bitter. Among other things, the grandparents had taken the children to talk to the grandparents' lawyer and to a psychiatrist without telling the father. The father and stepmother then got a court order which gave them the power to decide whether, when, and for how long the grandparents could visit the children.

The court gave the parents total control over visitation partly because of the animosity between the parents and grandparents and its effects on the children. The court felt that the children were being used in a "battle" between the adults, and said that it would be in the children's best interests to be free from that struggle. If that meant that the children could not see their grandparents, the court held that it would have to be that way.

However, a grandparent with prior visitation rights prevailed in In re Robert D., 151 Cal. App. 3d 391, 198 Cal. Rptr. 801 (1984). The court ordered the mother and stepfather to allow the mother's parents to visit their grandchildren. The mother had left her child in the temporary care of her parents. After her remarriage, the mother sought the return of her son, but her parents refused. The grandparents then tried to have the parental rights of their daughter terminated so they could adopt their grandson. Eventually, everyone agreed that the mother would have custody and the grandparents would be permitted to visit. Two years later, the mother and stepfather tried to undo the visitation order, arguing that the grandparents were substantially interfering with the parenting of their son.

Despite the parents' opposition, the trial court decided it would be in the best interest of the child to maintain the grandparents' visitation rights. The appellate court found no abuse of discretion to justify reversing the decision. However, it did throw out the trial court's order that the parents participate in psychological counseling with the grandparents and child. While counseling may have been helpful, the court was without authority to order it when there was no issue as to the parents being unable or unwilling to take care of their son.

The dissenting judge in Robert D. argued that the court should follow the statutory preference set forth in Civil Code § 4351.5(k) (now Family Code § 3103(d)), where absent a show of proof, grandparent visitation will be considered not in the child's best interest if the parties to the marriage agree that the petitioning grandparent should not be awarded visitation. However, this section applies only when the grandparents are seeking visitation rights in a proceeding for nullity of marriage, legal separation, or dissolution. Consequently, a court may be guided by, but is not obligated to follow, that statutory preference when grandparent visitation is being sought outside of these family law actions.

8. Can a grandparent whose own daughter or son has died be granted visitation rights with the grandchild?

California Family Code § 3102(a) provides that if either the father or mother of an unmarried minor child is deceased, the children, siblings, parents, and the grandparents of the deceased parent may be granted reasonable visitation rights upon a finding that this would be in the best interest of the child. However, one court opinion noted that grandparents rights were not to infringe on custodial parents after the death of a non-custodial parent. In re Marriage of Jenkins 116 Cal. App. 3d 767, 172 Cal. Rptr. 331 (1981). If the person requesting visitation is not the grandparent of the minor child, the court must consider how much personal contact existed between the child and the person before the visitation request was made.Family Code § 3102(b) Non-relative and distant relative caregivers should note that this statute applies only to children, siblings, parents, and grandparents of the deceased parent.

9. Under what other situations might a grandparent be granted visitation?

Recent legislation has increased the scope of visitation rights for grandparents. Grandparents may petition the court for visitation at any time with limitations. You may file if the parents are unmarried, or if the parents are married and they are living separately, or one parent is absent for a month or more and the other does not know where s/he is, or one of the parents joins in the petition, or the child is not living with either parent. The court must find that a bond between the grandchild and grandparent has been established. The court must also balance the interest of the child in having visits with the grandparent(s) against the right of the parents to exercise parental authority. Family Code § 3104

However, it should be noted that the U. S. Supreme Court decided in Troxel v. Granville, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), that a Washington statute allowing anyone to petition for visitation at anytime, was overbroad. In that case, the Court held that the lower court did not have the authority to grant visitation to grandparents over the parents’ objections. It is the parent who has the authority to make decisions concerning the “care, custody and control” of the child.

10. How are a grandparent's visitation rights affected when his or her adult child's parental rights are terminated?

Just as the parent of the minor child ceases to be the parent in the eyes of the law, so is the legal status of the grandparent extinguished. As hard as it may be to accept, if your child's parental rights have been terminated, you can no longer claim grandparent status, unless the child is adopted by the other set of grandparents or by a stepparent. Family Code § 3102 (c) Therefore it is important for you to become involved from the beginning in the juvenile court process.

11. What visitation rights does a grandparent have when the parents of the minor child were not legally married?

If your grandchild’s parents are not married to one another, you may be able to file a petition under Family Code § 3104 and be awarded visitation. See question 9 above for more information about this.

12. If grandparents suspect that the child's father is not the real father, can they challenge his paternity?

Not if a court has already found that he is the children's father. There is a strong public policy for maintaining parent-child relationship and of ensuring that paternity actions are final. The court in Guardianship of Claralyn S., 148 Cal. App. 3d 81, 195 Cal. Rptr. 646 (1983), cited this public policy in its rationale for denying the grandparent's challenge to the finding of paternity. Claralyn S. involved a child whose mother discovered while she was separated from her boyfriend that she was pregnant. The mother and her boyfriend reunited, and after the baby was born they got married. They had the boy's last name changed from the mother's surname to her husband's surname. At that time, both parents swore in court that they were the natural parents of the child.

The parents had separated once for a period of two months after they were married. During that time, the mother and her baby received public assistance. When the couple reunited, the county went to court to force the husband to reimburse the public assistance money. He entered into a legal agreement with the county in which he stated that he was the natural parent of Claralyn. Some time later, he petitioned for divorce from the mother and stated in the petition that he was the father of the child.

One year later, while the mother was incarcerated for a drug violation, she consented to have her father and stepmother appointed legal guardians of the baby with visitation rights to the ex-husband. At the temporary custody hearing, the mother testified under oath that her former husband was not the child's natural father. The maternal grandparents asked the court to order blood tests to determine paternity. The court did, and two blood tests both showed that the mother's former husband could not possibly have been the child's father. The grandparents then wanted the court to declare that their daughter's ex-husband was not their grandchild's legal father.

The court would not do so because paternity had been established in two prior court proceedings (the baby's name change and the divorce), and the judgments of those proceedings were final. Although the child could challenge paternity later because she had no say in the immediate court proceedings, the grandparents could not challenge paternity. The mother's ex-husband was the only father the child had ever known, the court reasoned, and it would not be in her best interest to lose the stable father-daughter relationship she had with him.

If a paternity action is pending and no decision has been made by the courts, the grandparents may attempt to intervene to introduce any information they might have to establish that the putative (alleged) father is actually not the father of their grandchildren.

 

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