Do Grandparents Have Visitation Rights in California?
The repercussions of divorce are rarely limited to the couple involved. In some cases, the impact of divorce can extend to the whole family.
When it comes to common points of contention during a divorce, especially regarding issues like child support and child custody, it isn’t uncommon for other relatives—such as an aunt, uncle, or grandparent—to get involved.
Generally, a child’s parents retain the right to decide if grandparents receive visitation time with their grandchild. However, this isn’t always the case. In certain instances, the court may override a parent’s objection and award grandparents visitation rights, so long as these rights are determined to be in the best interests of the child.
How to Request Visitation Time as a Grandparent
Regardless of familial circumstances, California courts do not automatically grant visitation rights to grandparents; rather, the grandparent must make their request known to the court. Generally, grandparents can receive visitation time under California Family Code §1300-3105 if both of the following conditions are true:
- There is a preexisting relationship between the grandparent and grandchild that establishes visitation time to be in the child’s best interests; and
- The benefit to the child is balanced against the right of the child’s parents to make decisions for the child’s life.
The process of receiving visitation or child custody rights as a grandparent in California is dependent on various factors. This includes whether or not there is an open case involving the child’s parents, as this determines how the grandparent will petition their case to the court.
If a family law case has already been filed between the parents, such as a divorce or paternity case, the grandparent desiring visitation or custody can merely ask to join the existing case and request visitation rights.
However, if there is not an open case when the grandparent decides to file, the grandparent must open a new case by filing their petition with the local court.
Can a Grandparent Petition for Visitation if the Child’s Parents Are Married?
In the event that the child’s parents are legally married and have not filed for divorce, grandparents cannot request visitation time.
This is because the state of California has a strong policy preference for the rights of parents over nonparents, as the court will generally recognize the parents’ marriage as a safe and stable relationship for the child without the need for external intervention.
However, some extenuating circumstances can exempt families from this rule, such as:
- The child’s parents are living separately on a permanent or indefinite basis
- A parent’s whereabouts are unknown and have been so for at least 1 month
- One parent joins the grandparent’s petition for visitation
- The child doesn’t live with either of their parents
- The grandchild has been adopted by a stepparent
- One of the child’s parents is incarcerated or voluntarily institutionalized
Influencing Factors When Determining Grandparents’ Visitation
When petitioning for visitation or custody rights, it’s crucial for grandparents to understand that they bear the burden of proof in court. This means that the grandparent bears the responsibility of proving to the judge that the requested visitation is in the child’s best interests.
Additionally, there are numerous factors that can influence the court’s decision about a grandparent’s visitation or custody rights, including (but not limited to):
- Any history of substance abuse
- Any history of domestic violence
- Any history of child abuse or neglect
- The child’s overall health and wellbeing
- Type and frequency of grandparent-grandchild communications
- The child's preference, if any, permitted they are old enough to express it
- The existing relationship between the grandparent and the child’s parents
Can Grandparents Win Custody of a Grandchild?
Yes. In certain circumstances, the California courts may see fit to grant child custody to a grandparent. However, keep in mind that this is a rare occurrence that typically only applies if neither parent is fit for custody.
In the event that the child’s parents are determined to be unsuitable for custody, the judge will typically award custody to someone who can provide a wholesome and stable environment for the child.
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