Andrews Family Law and Mediation Offices
Grandparent Rights

Grandparent Visitation

California law provides a framework which significantly expands rights of grandparents to visitation with their grandchildren. These provisions have been greatly limited by federal and California case law which held that a Washington statute that allowed any person to petition for visitation was overbroad and unconstitutionally infringed on the fundamental right of parents to rear their children. Although California’s statutes were drawn so that they pass constitutional muster, most appellate courts looking at them have declared them unconstitutional if applied too broadly.

With the caveat that these statutes are often held unconstitutional as applied, they provide:

UPON DISSOLUTION OF MARRIAGE & OTHER PROCEEDINGS: Family Code Section 3103 provides that in any proceeding involving the right of custody of a minor child, upon petition by the child's grandparent(s), the court may grant them reasonable visitation, if it finds that to be in the best interest of the child. If the child's parents agree that the grandparent should not be granted visitation rights, then there is a presumption that grandparent visitation is not in the best interest of the minor child.

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.

AFTER MARRIAGE OR NO MARRIAGE: Family Code Section 3104 provides that the court may grant grandparents' petition court for reasonable visitation rights if there is a preexisting relationship between the grandparent and child that has engendered a bond such that visitation is in the best interest of the child, and the interest of the child in having visitation outweighs the right of the parents to exercise their parental authority.

This petition may not be filed while the parents are married, unless: The parents are currently living separate and apart on a permanent or indefinite basis; one of the spouses has been absent with his/her whereabouts unknown for over a month; a parent joins in the petition; the child is not residing with a parent; or the child has been adopted by a stepparent. Should the court grant visitation and the condition cease to exist, the court must terminate visitation upon petition of either parent.

There is a presumption that grandparent visitation is not in the best interest of the child if either both of the child's parents agree that the grandparent should not be granted visitation rights, or if the parent with whom the child is living or who has been granted sole legal and physical custody objects to grandparent visitation. Note that the ability of the custodial parent to trigger this presumption does not apply if the parties are still married.

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.

AFTER DEATH OF ONE PARENT: Family Code Section 3102 provides that if either parent of a 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.

In granting visitation 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.