Grandparents do not have many legal rights regarding visiting with their grandchildren. There is no guaranteed right to see and visit grandchildren, and each state has their own provisions regarding the rights granted to grandparents. Generally speaking, grandparents are granted some level of visitation so long as there are no concerns. Some examples of disqualifying concerns would include alcohol abuse, a history of violence, and other factors that would determine a person unfit to spend time with children.
The parents of the child in question have the legal right to deny any grandparent visitation rights. This is especially true if they believe it is in the best interest of the child to prohibit interaction and visitation with the child’s grandparents. The only actual, legal right that a grandparent has is the right to request visitation. Because of the Troxel v. Granville case, the U.S. Supreme Court has determined that parents have the fundamental right to determine their child’s care and custody. As such, it is difficult for third parties to interfere with a person’s parental rights if that parent has not been deemed unfit. Third parties would include grandparents.
However, some states allow grandparents to request visitation rights if the nuclear family has been disrupted in some way, such as in cases involving divorce. In such cases, the court might grant visitation rights to the grandparents if the custodial parent would not let them visit otherwise, due to issues with their now ex spouse. Grandparents rights in California dictate that grandparents may request visitation rights, as long as their requests are reasonable.
What Rights Do Grandparents Have in California When it Comes to Visitation?
Once again it is important to note that grandparents do not have any inherent or legal right to visitation of their grandchildren. However, depending on the situation, a grandparent may file a suit affecting the parent child relationship in order to gain court ordered possession or visitation of a grandchild.
How Do I File for Grandparents Rights in California?
As previously mentioned, grandparents will need to request any rights they wish to be granted. The grandparents will need to petition the appropriate family court, which is generally the court where the last custody order was issued or where the divorce action is pending. Filing for grandparent rights in CA commonly involves the following:
- Determining whether there is already an open family court case;
- Starting a case if there is no existing open family court case;
- Filling out all necessary court forms, such as Form FL-300;
- Filling out any county specific forms;
- Having all forms reviewed and copied;
- Filing all forms with the court clerk;
- Obtaining court or mediation date;
- Serving papers to the child’s parents;
- Filing Proofs of Service; and
- Attending the court hearing or mediation session.
In California specifically, the petitioning grandparents must prove that there is a healthy, pre-existing relationship with the child. This is referred to as an “engendered bond” and proves that granting visitation rights is in the best interest of the child. Although the courts may find that visitation rights would be in the child’s best interests due to their relationship with the petitioning grandparents, they must balance this with the parent’s rights. As previously mentioned, the Supreme Court has determined that parents have a fundamental right to make decisions regarding their child’s care, custody, and control.
A judge will examine the parent’s decision in deciding that visitation would not actually be in their child’s best interest. An example of this would be if both parents agree that the court should not grant visitation rights, the court will presume that visitation with the grandparents is not in the best interest of the child.
California dictates that a grandparent cannot typically file for visitation rights while the children’s parents are still married. The following conditions must be met in order for grandparents to request visitation rights:
- One of the parents is deceased;
- The child’s parents are divorced, separated, or otherwise not living together;
- The whereabouts of one of the child’s parents is unknown, and has been for at least one month; or
- The child is not residing with either parent.
Other conditions may include the child being adopted by their stepparent, or one parent joins the petitioning grandparent in seeking visitation rights. It is important to note that in California, adoption does not automatically revoke the visitation rights of the child’s grandparents. As such, if any of the above circumstances change, the parents may petition the court to end the visitation rights granted to the grandparents.
What Factors Do Courts Consider When Determining Grandparents’ Visitation Rights?
Some of the factors that courts will consider when deciding whether to grant the request include:
- How far the parents reside from the grandparent(s);
- The grandparents’ lifestyle, including whether they are involved in drug or alcohol abuse;
- The child’s desire to visit with their grandparents, as well as how attached the child is to their grandparents; and
- Whether the parents have refused to allow the child to visit with their grandparents.
If all other factors are equal, then the court is more likely to award visitation rights to a grandparent if a parent has initially refused to allow the grandparent to visit the child, without any good reason. In cases in which the courts have granted visitation rights to a grandparent, a fixed visitation schedule is generally set. This schedule may outline:
- Whose home the child is to reside in;
- What days of the week the child may visit;
- Where the child is to be dropped off and picked up; and
- Whom the child will be with during special occasions (such as the child’s birthdays or holidays).
Generally speaking, it is preferred that the parents and grandparents work out a visitation schedule on their own. However, if they are unable, the court may intervene and impose a schedule of their own. The court’s schedule would consider the best interests of the parents, the grandparents, and the child. In some states, grandparents who are facing resistance from the child’s parents in obtaining visitation rights must prove to the court that some type of harm will come to the child, if they are not allowed to visit the child.
What if a Grandparent’s Visitation Rights Have Been Violated?
Although grandparents do not have an inherent right to visit their grandchild, it is generally in the child’s best interest to maintain a relationship with their grandparents. This is especially true if they have a close and healthy relationship.
If grandparents are denied visitation, as in court ordered visitation rights, they should speak with their grandchild’s parents in an effort to work out any disagreements or misunderstandings. Family counseling may also be a beneficial option, if having another individual present while discussing such issues would be helpful.
However, if neither of those options are effective, the grandparent(s) denied court ordered visitation should file an enforcement. If successful in the enforcement suit, the party that denied the visitation could also be ordered to pay the grandparents legal fees.
On a related note, grandparents may also consider working with a mediator in order to resolve any visitation issues. These impartial third parties can be a good option whether or not the disputing parties are able to obtain a court order, as going to court usually only adds more stress to your family and relationships.
Do I Need an Attorney If I Want Visitation Rights to My Grandchildren?
Working with a family law attorney has several benefits, such as simplifying a complicated legal process and ensuring that your rights are represented. If you live in California and are seeking visitation rights to your grandchildren, you should consult with a skilled and knowledgeable California family law attorney. An experienced family law attorney will be aware of local laws and statutes that could affect your case, and will represent you in court as needed.