Grandparents' Rights in California
Grandparents have rights to visitation, custody, adoption, and guardianship or their grandchildren. Grandparents also have a right to have their grandchildren financially supported by a parent of a child while the child is in the grandparent's physical custody; however, grandparents' rights are not absolute.
This article briefly discusses a grandparent's rights to custody, adoption, and guardianship of a grandchild, but but the focus of this article concerns grandparents' rights to visitation and support of a grandchild. For more information on a grandparent's rights to custody, adoption, or guardianship, please visit those corresponding pages.
For a grandparent to have rights to visitation or support of a grandchild the grandparent must first prove to the family court judge the following:
- There is a preexisting relationship between the grandparent and grandchild such that has engendered bonds between the grandparent and grandchild, and
- It is in the best interest of the child to visit his or her grandparent, as balanced against the rights of the parent, or parents of the child.
Thus, if there is no preexisting relationship between the grandparent and the grandchild, or, if it is not in the best interest of the grandchild to visit with his or her grandparents, then the family court judge may deny the grandparents the right to visit with the grandchild.
Also, if the grandchild's parents are married, the grandparent must also prove at least one of the following factors before a family court judge will entertain grandparents' rights to visitation and support (one of these factors must be present in addition to the two elements listed above if the child's parents are married):
- The parents are not living together
- The parent's whereabouts are unknown for at least a month
- One of the parents joins the grandparents' petition
- The child does not live with either parent, or
- The child has been adopted by a stepparent
Note: If a grandparent has visitation rights established by the famil court, and the situation changes after establishing the grandparents' rights, and none of the above listed exceptions applies, one, or both, parents can ask the court to end the grandparents' rights.
Grandparents rights to visitation or support may not be established if the grandchild has been adopted by a person who is not related to the biological mother or father.
Also, before a grandmother or grandfather, or both, may be heard in family court, the court will require all the parties to attend mediation. If the parent, or parents, do not have a good relationship with the grandmother or grandfather, or both, then mediation can be handled in separate sessions so as to avoid any negative conflict between the parties.
Furthermore, establishing grandparents' rights is the proper vehicle for maintaining visitation with grandchildren. When the mother or father, or both, are dangerous to their child or children, it is better for the grandparents to obtain child custody or a guardianship over the grandchild.
Finally, the grandparent must also prove that visitation is generally being denied by the parent or parents. In other words, if a grandparent typically visits with his or her grandchild a few times a year without objection by the parents then the grandparent will be denied extra visitation by the court. The idea is that if the existing relationship between the grandparent and grandchild consists of very few visits then that is the limit of the bond that has been established between grandparent and grandchild. However, if a parent reduces the number of visits or denies visits altogether then a grandparent can request from the family law judge that the grandchild maintain the level of visits previously enjoyed by the grandparents. If all visits have been denied then the family law judge can establish reasonable visitation.
Grandparents Rights v. Custody of Grandchildren Rights
When we speak of grandparents' rights we are usually talking about the right to visit a grandchild, or the right to receive child support for your grandchild from the child's parent or parents. The right to visit with grandchildren does not include the right to make decisions for them. If a grandparent is seeking to have the legal right to make legal decisions for the grandchild then the grandparent may request an order for custody of the grandchild. With custody, the grandparent will have the right, either solely, or jointly with the parent of the child, to make legal decisions on health care, schooling, religious activities, extra curricular activities, and more. It is more difficult to establish legal custody of a grandchild then to establish grandparents' rights to visitation and support. Child custody issues are covered in more detail under child custody law.
Grandparents' Rights v. Adopting of Grandchildren
As stated above, grandparents rights to visitation or support does not give the grandparent the right to legal custody of the grandchild. Child custody may sometimes be established for grandparents but that custody is often shared with the parent or parents. If the grandparent seeks to terminate the parents' rights then an adoption of a grandchild by a grandparent may be requested. An adoption is a complete termination of the parents' rights. An adoption of a grandchild by a grandparent gives the grandparent all the legal rights to a grandchild that the parent would otherwise enjoy. Adoptions can be complex in terms of procedure and only a qualified adoption and family law attorney should handle these types of cases. Adoptions are covered in more detail under adoption law.
Grandparents' Rights v. Guardianship Rights
Again, establishing grandparents rights to visitation or support will not give the grandparent any rights other than the right to visit the grandchild or have the grandchild financially supported while in the physical custody of the grandparent. For this reason, a request for legal guardianship of the grandchild is sometimes preferred. A guardianship is a legal relationship between a minor child and a guardian that gives the guardian certain rights and obligations regarding the child. A guardianship does not sever the legal relationship that exists between a child and his or her biological parents. Instead, it co-exists with that legal relationship, similar to joint legal custody but limited in scope. Guardianships may be temporary or permanent. Guardianships may be used for specific purposes such as to manage a child's financial affairs or ensure that the child attends school. Usually a grandparent guardian will visit with the grandchild who is protected, also called the ward, but it is not necessary. Guardianships are covered in more detail under guardianship law.
How to File (Petition) for Grandparents Rights
To establish grandparents rights to visitation or support, the petitioner must fill out the proper family law forms and legal documents. Depending on the circumstances, those forms and legal documents can include any or all of the following: FL 100, 105, 300, 311, 341, UCCJEA, Assignment Sheet (usually a local court form), CII criminal background sheet (usually a local court form), Joinder Pleadings, and more. The law and procedure for establishing grandparents' rights can be difficult to navigate and it is always best to use a family law attorney who is experienced with establishing grandparents' rights.
We have included much of the pertinent law on grandparents' rights to visitation and support at the right side of this page. For more information on California grandparent's rights, guardianships, adoptions, or child custody (legal and physical), please contact the divorce and family law attorneys at Dorado & Dorado, APLC.
Our experienced divorce and family law attorneys have successfully represented hundreds of families in the Inland Empire. Our experience includes representation of grandparents seeking to establish visitation and support of their grandchildren as well as representation of mothers and fathers seeking to sever grandparents' rights. We are among the largest family law firms in the San Bernardino and Riverside County area. Our consultations are provided at no cost seven days a week.
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Grandparents' Rights Summary of Law
FL 3100(a) In making orders [guardianship]...the court shall grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child.
FL 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 child's best interest...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.
FL 3103(a) Notwithstanding other law...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.
FL 3103(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.
FL 3103(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.
FL 3103(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.
FL 3103(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, allocate the percentage of grandparental visitation between the parents for purposes of the calculation of child support, and/or order a parent or grandparent to pay to the other, an amount for the support of the child or grandchild.
FL3104(a) On petition to 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 grandchild that has engendered a bond such that visitation is in the child's best interest, and 2) balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.
FL3104(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 parent 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 institutionalized.
FL3104(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.
FL3104(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.
FL 3105(a) The law finds and declares, that a parent’s fundamental right to provide for the care, custody, companionship, and management of his or her children, while compelling, is not absolute. Children have a right to maintain healthy, stable relationships with a person who has served in a significant, judicially approved parental role.