A court has the authority to grant “reasonable visitation” to grandparents in dissolution, nullity, or legal separation proceedings. Fam C §3101. In addition, if either natural parent is deceased, the court may grant reasonable visitation of a minor child not only to the parents and grandparents of the deceased parent but also to any children or siblings of the deceased parent. Fam C §3102.
How Do Grandparent’s Rights Work?
The parents will control the grandparent’s contact in most cases, and any contact must still be deemed in the child’s “best interest.” Fam C §3104(a)(1). Moreover, there is a presumption that an order for no contact is in the child’s best interest if both legal parents agree that the grandparent should not be granted visitation rights. Fam C §3103(d).
The family court may make no more than a visitation order between the child and the grandparents. Grandparents cannot have “custody” of a grandchild (except in cases of Guardianship). However, in light of the effect, this may have on the custody proceeding, the grandparents may also be ordered to pay child support as well as medical and daycare expenses for the child. Fam C §3103(g)(2).
The general presumption of the courts is that fit parents will always act in the child’s best interests and have the right to make their own decisions. However, the court may override that presumption in some cases. As a grandparent, you have the right to petition the court for reasonable visitation with your grandchild. In order to grant this visitation, the court must:
- Find that there was a pre-existing relationship and a bond between grandparent and grandchild
- Balance the rights of the parents to make decisions about their child against the best interests of the child in having visitation with grandparent(s).
Generally, visitation is not granted to grandparents while the parents are married. However, there are exceptions. For example, when the parents are living separately, or when one of the parents joins the grandparents’ petition for visitation.
Fam C § 3101
(a) Notwithstanding any other provision of law, the court may grant reasonable visitation to a stepparent, if visitation by the stepparent is determined to be in the best interest of the minor child.
(b) If a protective order, as defined in Section 6218, has been directed to a stepparent to whom visitation may be granted pursuant to this section, the court shall consider whether the best interest of the child requires that any visitation by the stepparent be denied.
(c) Visitation rights may not be ordered under this section that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding.
(d) As used in this section:
(1) “Birth parent” means “birth parent” as defined in Section 8512.
(2) “Stepparent” means a person who is a party to the marriage that is the subject of the proceeding, with respect to a minor child of the other party to the marriage. [Repealed and added by Stats. 1993, Ch. 219, Sec. 116.76. Effective January 1, 1994]
Fam C § 3102
(a) 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.
(b) 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.
(c) 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. [Amended by Stats. 1994, Ch. 164, Sec. 1. Effective January 1, 1995]
Fam C § 3103
(a) Notwithstanding any other provision of law, in a proceeding described in Section 3021, the court may grant reasonable visitation to a grandparent of a minor child of a party to the proceeding if the court determines that visitation by the grandparent is in the best interest of the child.
(b) If a protective order as defined in Section 6218 has been directed to the grandparent during the pendency of the proceeding, the court shall consider whether the best interest of the child requires that visitation by the grandparent be denied.
(c) The petitioner shall give notice of the petition to each of the parents of the child, any stepparent, and any person who has physical custody of the child, by certified mail, return receipt requested, postage prepaid, to the person’s last known address, or to the attorneys of record of the parties to the proceeding.
(d) There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the child’s parents agree that the grandparent should not be granted visitation rights.
(e) Visitation rights may not be ordered under this section if that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding.
(f) Visitation ordered pursuant to this section shall not create a basis for or against a change of residence of the child, but shall be one of the factors for the court to consider in ordering a change of residence.
(g) When a court orders grandparental visitation pursuant to this section, the court in its discretion may, based upon the relevant circumstances of the case:
(1) Allocate the percentage of grandparental visitation between the parents for purposes of the calculation of child support pursuant to the statewide uniform guideline (Article 2 (commencing with Section 4050) of Chapter 2 of Part 2 of Division 9).
(2) Notwithstanding Sections 3930 and 3951, order a parent or grandparent to pay to the other, an amount for the support of the child or grandchild. For purposes of this paragraph, “support” means costs related to visitation such as any of the following:
(A) Transportation.
(B) Provision of basic expenses for the child or grandchild, such as medical expenses, day care costs, and other necessities.
(h) As used in this section, “birth parent” means “birth parent” as defined in Section 8512. [Amended (as added by Stats. 1993, Ch. 219) by Stats. 1993, Ch. 832, Sec. 1. Effective January 1, 1994]
Fam C § 3104
(a) On petition to the court by a grandparent of a minor child, the court may grant reasonable visitation rights to the grandparent if the court does both of the following:
(1) Finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child.
(2) Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.
(b) A petition for visitation under this section shall not be filed while the natural or adoptive parents are married, unless one or more of the following circumstances exist:
(1) The parents are currently living separately and apart on a permanent or indefinite basis.
(2) One of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse.
(3) One of the parents joins in the petition with the grandparents.
(4) The child is not residing with either parent.
(5) The child has been adopted by a stepparent.
(6) One of the parents is incarcerated or involuntarily institutionalized.
At any time that a change of circumstances occurs such that none of these circumstances exist, the parent or parents may move the court to terminate grandparental visitation and the court shall grant the termination.
(c) The petitioner shall give notice of the petition to each of the parents of the child, any stepparent, and any person who has physical custody of the child, by personal service pursuant to Section 415.10 of the Code of Civil Procedure.
(d) If a protective order as defined in Section 6218 has been directed to the grandparent during the pendency of the proceeding, the court shall consider whether the best interest of the child requires that any visitation by that grandparent should be denied.
(e) There is a rebuttable presumption that the visitation of a grandparent is not in the best interest of a minor child if the natural or adoptive parents agree that the grandparent should not be granted visitation rights.
(f) There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the parent who has been awarded sole legal and physical custody of the child in another proceeding, or the parent with whom the child resides if there is currently no operative custody order objects to visitation by the grandparent.
(g) Visitation rights may not be ordered under this section if that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding.
(h) Visitation ordered pursuant to this section shall not create a basis for or against a change of residence of the child, but shall be one of the factors for the court to consider in ordering a change of residence.
(i) When a court orders grandparental visitation pursuant to this section, the court in its discretion may, based upon the relevant circumstances of the case:
(1) Allocate the percentage of grandparental visitation between the parents for purposes of the calculation of child support pursuant to the statewide uniform guideline (Article 2 (commencing with Section 4050) of Chapter 2 of Part 2 of Division 9).
(2) Notwithstanding Sections 3930 and 3951, order a parent or grandparent to pay to the other, an amount for the support of the child or grandchild. For purposes of this paragraph, “support” means costs related to visitation such as any of the following:
(A) Transportation.
(B) Provision of basic expenses for the child or grandchild, such as medical expenses, day care costs, and other necessities.
(j) As used in this section, “birth parent” means “birth parent” as defined in Section 8512. [Amended by Stats. 2014, Ch. 328, Sec. 1. (AB 1628) Effective January 1, 2015]
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