Visitation Rights for Grandparents: What You Need to Know

The relationship between a grandparent and a grandchild can be one of the greatest relationships that a child has. A grandparent is a source of guidance and support; California law recognizes its importance.  Due to this, a grandparent can petition to have either visitation rights or custody of their grandchild.

Petition for Visitations Right:

There are two applicable Family Code Statutes that are applicable to analyze when it comes to the visitation rights that a grandparent has §3102 and §3104.

California Family Code Section §3102,

1. 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.
2. 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.
3. 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 before bringing the petition to the Court.

California Family Code Section §3104:

An important thing to note, if a child’s parents are married and live together with their child, a grandparent can’t file a petition to ask for visitation. This is because the state of California has a strong policy preference for the rights of parents over nonparents.

However, there is an exception, under California Family Code Section §3104, a Court may grant reasonable visitation rights to a grandparent if it finds that:

1. Granting visitation would be in the child’s best interest because there is a preexisting relationship between the grandparents
2. The child’s best interest in seeing the grandparent outweighs the parent’s right to decide for their child.

Additionally, under California 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:

1. The child’s parents are living separately on a permanent or definite basis.
2. A parent’s whereabouts are unknown and have been for at least one month.
3. One parent joins the grandparent’s petition for visitation.
4. The child doesn’t live with either of their parents.
5. The grandchild has been adopted by a stepparent.
6. One of the child’s parents is incarcerated or voluntarily institutionalized.

Petition for Seeking Custody of a Grandchild:

California law makes it possible for a grandparent to petition for permanent custody of a grandchild. However, when this is the case, the grandparent must prove among other factors, that the child’s health, safety, and well-being are in danger due to the abuse or neglect of one or more parents. Some examples of this could include:

1. One or both parents are incarcerated and are unable to adequately care for the child;
2. The parents are deceased;
3. There is evidence that one or both parents are suffering from drug abuse or addiction;
4. There is evidence of domestic violence between the child’s parents; and
5. One or both parents are suffering from mental health concerns.

Whether you are requesting visitation time or seeking custody of your grandchild, you do have a right to visitation or custody. However, this process can be an extremely difficult process that includes many factors that the Courts would consider before ruling in the favor of a grandparent. The attorneys at Butler Law, PC have experience in such petitions and can assist you with these issues.