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Non-Parent And Relative Rights To Child Visitation

by | May 21, 2021 | Child Custody & Visitation

The law if California provides an avenue for non-parents of children to obtain rights to visitation with the children in limited circumstances. This means that even if you are not a parent of a minor child, you may be able to petition the Court for visitation of the minor child.

California Family Code §3100 states:

(a) In making an order pursuant to Chapter 4 (commencing with Section 3080), the court shall grant reasonable visitation rights to a parent when it is shown that the visitation would be in the best interest of the child, as defined in Section 3011, and consistent with Section 3020. In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child.

Generally, non-parents seeking custody or visitation of a minor child are often the maternal or paternal grandparents of the child. In California, Family Codes §3102, §3103, and §3104 expressly address non-parent and grandparent visitation. A non-parent visitation request can be made by a non-parent when a parent becomes deceased pursuant to Section 3102. Grandparents can also make a visitation request under either Family Code §3103 or §3104, depending on which circumstances apply.

Relatives that are not grandparents have a steep hill to climb when petitioning for visitation time with minor children. Non-parents normally cannot petition for visitation independently unless there is a statutory exception, such provided by Family Code section 3102(a). California Family Code Section 3102(a) gives a non-parent the right to visit if one natural parent of the child is deceased. California Law provides if either parent of an unemancipated minor dies, the deceased parent’s children, siblings, parents and grandparents “may be granted reasonable visitation” rights during the child’s minority so long as there is a finding the visitation is in the child’s best interest.

California Family Code §3102 states:

(a) If either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the child’s minority upon a finding that the visitation would be in the best interest of the minor child.

(b) In granting visitation pursuant to this section to a person other than a grandparent of the child, the court shall consider the amount of personal contact between the person and the child before the application for the visitation order.

(c) This section does not apply if the child has been adopted by a person other than a stepparent or grandparent of the child. Any visitation rights granted pursuant to this section before the adoption of the child automatically terminate if the child is adopted by a person other than a stepparent or grandparent of the child.

While §3102 provides the avenue and standing for a non-parent relative to petition for visitation, the Court reviews the petition with serious scrutiny and considers the amount of time the non-parent has spent with the child prior to brining the petition to the Court.

Essentially, California Courts require the right of the non-parent to child visitation must be balanced with the fundamental right of a parent to make parenting decisions concerning their child’s contact with grandparents and other relatives. Because of this, when a §3102 Petition for Visitation is contested, the Court often defers to the surviving parent’s constitutional right to determine the child’s care, custody and control unless there is a showing that this is not in the best interest of the child.

Courts in California provide a slightly easier route to child visitation if the petitioner is a maternal or paternal grandparent, though there are specific requirements that must be met and the Court continues to review the matter under the standard of what is in the best interest of the child, not the best interest of the petitioner.

California Family Code §3103 states:

(a) Notwithstanding any other provision of law, in a proceeding described in Section 3021 , 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 interest of the child.

If a parent of the minor child is already a party to a Superior Court proceeding as defined by Family Code §3021, such as a Petition for Dissolution, Petition for Legal Separation, or Request for Order for Child Custody, Visitation or Support, grandparental visitation may be requested under Family Code §3103 through a process called joinder. If grandparental visitation is in the best interest of the child then the Court may order the requested visitation to the petitioning grandparent. If, however, the parents agree that grandparental visitation is not in the best interest of the minor child then the grandparent must prove by a preponderance of the evidence that the visitation would be in the child’s best interest. This is a difficult standard to reach, and is put in place by the California Legislature to protect continue to protect the balance between the right of the grandparent to have visitation with the child and the parent’s constitutional right to determine the child’s care, custody and control.

If the parents are not married, and are not already a party to a proceeding outlined in Family Code section §3021, California code states a grandparent may bring an independent action for visitation pursuant to Family Code §3104.

California Family Code §3104 states:

(a) On petition to the court by a grandparent of a minor child, the court may grant reasonable visitation rights to the grandparent if the court does both of the following:

  • 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 interest of the child.

(2) Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.

If the parents are married, then California Family Code Family Code section 3104(b) provides that a grandparent may bring an independent action for visitation if one or more of the following circumstances exist:

  • The natural or adoptive parents are separated and living apart on a permanent or indefinite basis;
  • One of the parents has been absent for more than a month without the other parent knowing the whereabouts of the absent spouse;
  • One of the parents joins in the petition;
  • The child is not residing with either parent; or,
  • The child has been adopted by a stepparent.

Similar to a §3103 Petition, however, a grandparent must prove by a preponderance of the evidence that the visitation is in the best interest of the minor child if:

  • The natural or adoptive parents agree visitation should not be granted
  • A parent awarded sole legal and physical custody in some other proceeding objects to the visitation; or
  • If no order exists, and a parent with whom the child resides objects.

The bar to petition the Court for custody of the minor child is even higher than visitation as discussed here. California Court’s have further specific requirements which must be met if a non-parent is seeking custody, and many non-parents do not have standing to make such a petition. Petitioning the Court for visitation of a minor child is a complicated process. If you are a non-parent seeking visitation of a minor child, consider hiring experienced counsel to guide you through. Butler Law, PC has experience in such petitions and can assist you.