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California grandparents’ legal avenue to visitation rights with grandchildren

Grandparents have limited rights to petition the court for the right to grandchild visits.

More than three-quarters of families said that grandparents were indispensable to their families in response to a survey by the Foundation for Grandparenting. On its website, the organization shares findings showing why effective grandparents are important to grandchildren, including:

  • Spending time with a grandparent can provide a grandchild "emotional security" and "a feeling of well-being."
  • Interacting with a grandparent who has physical, emotional, spiritual or intellectual vitality can give a grandchild "joy, excitement and wonder."

The foundation stresses the role of a grandparent as a spiritual (religious or otherwise) and moral teacher who provides guidance about handling life's challenges and life's very meaning. Related to this is the powerful and stabilizing feeling a grandchild can develop from a grandparent's unconditional love.

Given these strong connections between grandparents and their grandchildren, it is easy to understand how their disruption can be harmful and upsetting to both parties. When the contact between a grandchild and grandparent is interrupted, California law provides the right to ask the court for visitation rights in certain situations.

California law governing grandparent visitation

California statutes allow a grandparent to petition the court for reasonable visitation rights to spend time with a minor grandchild in particular circumstances.

First, the grandparent may petition for visitation when one of the parents is deceased. The court will consider the history of personal contact between the grandparent and grandchild and determine if visitation is in the child's best interest. (Visitation rights in this situation end if the child is adopted by anyone other than a stepparent or grandparent)

Second, the grandparent may petition for visitation if the parents are unmarried or if the parents are married and:

  • Living apart permanently or indefinitely
  • One has been missing for more than one month in an unknown location
  • One of them joins in the grandparent's petition
  • The child does not live with either of them
  • One is in jail or involuntarily institutionalized
  • A stepparent has adopted the child

In order for the court to grant visitation under these circumstances, it must be in the child's best interest considering whether there is a pre-existing bond between the grandparent and grandchild that makes it so. The court must also balance the child's interest in visiting the grandparent with the parental right to say no. Such a visitation order also must not conflict with the visitation or custody rights of a birth parent who is not part of the legal proceeding.

When a fit parent or parents have denied a grandparent the right to visit a grandchild, California courts apply a rebuttable presumption that the parent is acting in the best interest of the child, based on the parent's constitutional right to care for and control the child.

To overcome this presumption and become eligible for a visitation order over the parent's objection, the grandparent must show by clear and convincing evidence that to deny him or her visitation with the child is not in the child's best interest.

This article introduces the visitation rights of California grandparents, an area that is complex with complicated procedural requirements. It is therefore a good idea to consult with an experienced family lawyer who can advise the grandparent about his or her rights and how to proceed.

In Chula Vista, custody and visitation attorney Victor Mordey of the Law Office of Victor Mordey represents grandparents in such petitions, as well as other clients in a wide variety of family law matters.

Keywords: California, grandparent, visitation, grandchild, petition, court, parent, best interest

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