Grandparents do not have many legal rights concerning their grandchildren and visiting with their grandchildren. There is no guaranteed right to see and visit their grandchildren. Each state has their own provisions regarding the rights granted to grandparents.
In general, grandparents are allowed some level of visitation as long as there are no concerns such as alcohol abuse, a history of violence, or other factors that would determine a person unfit to spend time with children.
The parents of the child have the legal right to deny any grandparent visitation rights, especially if they believe it is in the best interest of the child. The only actual legal right a grandparent has is the right to request visitation.
Through the Troxel v. Granville case, the U.S. Supreme Court dictates that parents fundamentally have the right to determine their child’s care and custody. Because of this, it is difficult for third parties (which include grandparents) to interfere with a person’s parental rights if that parent has not been deemed unfit.
However, there are a few states in which a grandparent is allowed to request visitation rights if the nuclear family has been disrupted in some way, such as divorce. In such cases, the court would possibly grant visitation rights to the grandparents if the custodial parent would not let them visit otherwise due to issues with their now ex spouse.
California is one of the states that will allow grandparents to request visitation rights, as long as their requests are reasonable. California courts will consider a few different factors before either granting or denying visitation rights.
In states that allow grandparents to request visitation rights, 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.
The petitioner will be responsible for proving to the court that visitation is an appropriate action under that state’s law, which will be based on the circumstances of each individual case. The courts will look at factors such as the relationship between the parent and the grandparent, how recently the child has had contact with the petitioning grandparent, and whether visitation would unfairly interfere with the parent’s time with the child.
In California specifically, the petitioning grandparents will need to 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. All states base their decisions on the Child’s Best Interests Standard.
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 need to examine the parent’s decision in deciding that visitation would not actually be in their child’s best interest. For example, 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.Thus, if any of the above circumstances change, the parents may petition the court to end the visitation rights granted to the grandparents.
Family law is complicated and very often an emotional, or even distressing experience. There are sometimes several relationships at stake. Further, each state has their own laws regarding third party visitation rights. Additionally, all decisions must be made according to the Child’s Best Interests Standard.
If you are a grandparent in California seeking visitation rights with your grandchild, you will need to seek out a knowledgeable and qualified California child visitation attorney. They will help you determine whether you can legally petition for visitation, and if so, how to prove to the court that there is an engendered relationship.