SeparationA guide to Grandparent Visitation

December 12, 20201

It is not unusual for grandparents to be involved in their grandchildren’s lives, or to even be care-takers. This is especially true given the high cost of childcare in California. Sometimes, however, these situations break down, especially in the context of a less than amicable divorce. What rights do grandparents have when that happens?

Grandparents, unlike parents, have no inherent right to visitation with their grandchildren. Grandparents’ visitation rights come from statutes passed by the California legislature. In California, there are three statutes in the Family Code that authorize court-ordered visitation to grandparents. They are:

1) Section 3102, which applies when one of the parents is deceased;
2) Section 3103, which applies when there is a pending action between the parents but no permanent custody award; and
3) Section 3104, which applies either when there is no underlying case between the parents or post-Judgment.

While the analysis is different depending upon which of the above-listed Sections is applicable to your specific situation, each Section must be applied in keeping with the controlling case law which lays out how to balance the inherent rights of parents with the statutory rights of grandparents, and also considers the best interests of the children.

The seminal case on grandparent visitation is the United States Supreme Court case Troxel v. Granville (2000) 530 U.S. 57, 60. In Troxel, the Court reviewed a Washington State statute that authorized courts to grant visitation to any person if it would serve the best interest of the child. The Court held that the statute, as applied in that case, violated the mother’s 14th Amendment substantive due process “fundamental right” to make decisions concerning the care, custody, and control of her children. Moreover, the Court found that there is a presumption that “fit” parents act in their children’s best interests. Thus, the Court held that so long as a parent is fit, a court should not be involved or overrule the parent’s decisions regarding visitation, except in very limited cases.

Post-Troxel, the California courts have developed this area of the law further, for example, finding that clear and convincing evidence, the highest burden of proof in a civil case, is required to overcome the presumption that a fit parent will act in the best interest of the child.

If you have a matter involving grandparent visitation that you would like to discuss with us, please contact our office at (415) 357-5050 or by e-mail [*hyperlink] to arrange a consultation.

 

One comment

  • Esta Reinger

    January 25, 2018 at 9:35 am

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