Grandparent's Visitation and Custody Rights
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by: Margaret D. Wilson, Esq.
Word Count: 1218
Date: Wed, 16 Jun 2010 Time: 10:08 PM
This article is based on California law.
Any rights that grandparents may have are purely statutory (White v. Jacobs (1988) 198 Cal.App.3d 122, 124-125.) If you look carefully at the family codes that give rise the ability of a grandparent to see visitation you will see that it is not the grandparent that has rights but he child. The rights of the child are encompassed in the “best interest” standard. [Family Code Sections 3021, 3102, and 3103] What is in the child’s “best interest” is left to the discretion of the trial court. The trial court may grant visitation to a grandparent if the court determines it is within the child’s best interest. However, certain statues contain a presumption that grandparent visitation is not in the child’s best interest under certain circumstances (In re Marriage of Harris (2004) 17 Cal.Rptr.842). Broadly speaking, the circumstances that create an adverse presumption deal with when a birth parent is not a party to the action or when both parents agree that there should be limited or no grandparent visitation.
Nonetheless, on a petition to the court by a grandparent of a minor child, the court may grant reasonable visitation rights if the court finds (1) there is a preexisting relationship between the grandparent and the child and it is within the child’s best interest; and (2) the court must balance the interest of the child in having visitation with the grandparent against the right of the parent to exercise their parental authority. [Family Code Section 3104.] Generally speaking the court will want to see that the grandparent has had an ongoing relationship and the degree of that relationship with the child. For example if the grandparent saw the child every Saturday and they have a close relationship with the child that may be enough to qualify in the eyes of the court. However, if the grandparent does things to try to destroy the relationship the child has with the objecting parent, or allows the child to do or act in a way the is objectionable then it will be an uphill battle for the grandparent to obtain visitation.
Grandparents who seek custody or visitation should also be aware that they are opening themselves up to possibly paying child support. As unbelievable as this maybe according to Family Code Section 3104(g)(2) once visitation or custody has been established a parent can seek child support from a grandparent and a grandparent my seek child support from the parents. Therefore, it is a possibility that if the grandparent makes more money than the parent the grandparent may have to pay child support to the child’s parent. While most grandparents might find this extremely objectionable you have to take into consideration that a child has the right to the standard of living of both parents and by analogy to that of grandparent asserting physical custody/visitation of the child.
In today’s society of blended families, step-grandparent often take on the role of grandparent. While it can be argued that step-grandparents also have visitations rights the legislator was careful to make sure that a natural parent was not divested of their rights. The legislator sought to protect natural parents with Family Code Sections 3103(e) & 3104(g) which state that a grandparent may not be granted custody or visitation of a child if it conflicts with the right of custody or visitation with a birth parent who is not a party to the action. This means that if the visitation you are seeking conflicts with your step-grandchild’s birth parent, and that birth parent is not party to the action you filed, the court cannot grant you visitation or custody.
As you can see there are many obstacles that a grandparent must overcome in order to obtain visitation or custody of their grandchild(ren). Every grandparent visitation case is unique and there is no one-size fits all solution to obtaining custody or visitation. Therefore, it is important that you hire an attorney who understands this area of law and can do the research that is needed to help you in your particular case.
About the Author
Margaret D. Wilson is the principal attorney and founder of the Law Office of Margaret D. Wilson.
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