Grandparent Rights in California: Can You File for Visitation?
Grandparents are often a source of stability and love for their grandchildren. When divorce, custody battles, or family disputes threaten that bond, California’s grandparents’ rights laws can help protect and preserve the relationship.
California law enables grandparents to seek visitation or custody in a complex process, where courts consider multiple requirements and rights.
What are grandparent rights regarding visitation in California?
By no means are grandparents in California automatically entitled to visitation of their grandchildren. In fact, they can only request a judge to order visitation if:
- The children’s parents are unmarried.
- The children’s parents are married but one or more of the conditions listed below exist.
Even with these criteria, grandparents still have a significant burden of proof to meet for visitation rights. A judge will only grant visitation if:
There is a pre-existing relationship and bond.
The grandparent must establish and show a preexisting relationship between the grandparent and grandchild that has engendered a bond such that visitation is in the best interest of the child. The court will only rule in favor of visitation if it is in the child’s best interest.
The child’s best interest outweighs parental rights.
Parents have a constitutional right to make decisions about how to raise their child and who their child interacts with, with little outside input. The court often presumes that the parent’s decision serves the child’s best interest and typically defers to it.
The bond between the grandparent and grandchild must outweigh parental rights.
The court examines several factors in balancing the best interest of the child with the rights of the parents, including, but not limited to:
- There’s an existing bond between grandparent(s) and grandchild.
- The grandchild’s best interest to see the grandparent(s) outweighs the parent’s right to make decisions about their child.
Can grandparents still get visitation rights if the parents are married?
Usually, if a child’s parents are married while living together as a family, the grandparents cannot file for visitation. With courts prioritizing parents’ opinions so heavily, it can be tough for grandparents to get visitation if both parents agree not to let them visit.
Married parents get to choose who their child visits. According to Family Code Section 3104, grandparents can only file a petition for visitation if the parents are married, if:
- The parents do not live together permanently or indefinitely.
- One parent’s whereabouts is unknown for a month or more.
- One parent joins the grandparents’ petition.
- The child does not live with either parent.
- A stepparent adopted the child.
- One parent is in prison or involuntarily hospitalized.
Parents can request the court terminate grandparent visitation rights if circumstances change.
How can a grandparent file for visitation?
Grandparents interested in filing for visitation must first create a petition. They can either start their own case or join the parents’ divorce or existing custody case. The grandparents must serve both parents after they file the papers.
Before the court decides on visitation, it will require mediation between the grandparents and parents. The mediator will focus on the grandchild’s best interest and work out solutions to avoid court.
If the parties cannot agree in mediation, the court will schedule a date for the judge to decide.
What happens when the court grants grandparent visitation?
The court will create a visitation schedule that serves the child’s best interest for grandparents’ visitation. California courts will issue an order with specific times, days, and even supervision requirements for grandparents to see their grandchildren.
The court may factor grandparent visitation into the parents’ percentage of custody time, which can affect child support calculations. Additionally, the court may order a parent or grandparent to pay costs related to the visitation, such as transportation, medical expenses, daycare, or other necessities.
Can grandparents get custody of their grandchildren?
Yes, however, grandparents face an even higher burden of proof to gain custody than they do to gain visitation rights. Grandparents can file and gain custody if:
- The court finds that granting custody to the parent would be detrimental to the child and awarding custody to the nonparent is necessary to serve the best interest of the child.
- The parent left the child in their care for a specified period (“abandonment”) without communication or support.
Key Takeaways for Grandparents
California law puts a significant emphasis on ensuring the child’s well-being. Grandparents who want visitation rights must provide evidence that they contribute to the child’s welfare, happiness, and psychological development.
Grandparents must prove that their relationship with their grandchild serves the child’s best interest, and without it, the child is harmed. Courts generally defer to fit parents’ decisions about what is best for their child, making visitation and custody orders complex.
An experienced family law attorney can help explain California grandparent rights and guide them through the emotional process of seeking visitation or custody.
Nancy Martinez is a Family Law Attorney at Lewitt Hackman.