Divorces and custody agreements can be difficult for any family. However, grandparents are often overlooked when designing visitation or custody arrangements. This is unfortunate because many grandparents still want to be involved in their grandchild’s life after a divorce or situation that changes custody.
General Grandparent Visitation Rights
Parents can always determine that grandparents can visit their children with or without a court order. The court will only become involved in one or both of the parents is refusing to allow a grandparent to see their grandchild and the grandparent files a visitation petition.
Grandparent Visitation After a Divorce
Under California law, grandparents can request reasonable visitation with the child, regardless of whether their son or daughter retains physical or legal custody of the child. However, the test to grant visitation to a grandparent is generally more demanding than that of a parent. The court must consider:
- Whether there was a pre-existing bond between the child and the grandparent that would make visitation in the best interest of the child and
- The balance between the parent’s rights, the best interests of the child, and the grandparent’s rights.
The court starts with the assumption that if both parents or one parent with sole custody does not want the grandparent to see the child, then visitation should not be granted. The grandparent must show that visiting the child will help the child’s emotional or physical well-being. The court’s major focus of its decision to allow visitation is in the best interests of the child.
Grandparent Visitation While the Parents Are Married
There are situations where children will not allow their parents to see their grandchildren for a variety of reasons. Generally, if the parents remain married, they control who visits their child, including whether visits from grandparents are a good idea, and the grandparent cannot petition the court for visitation. There are some exceptions to this general rule, however. These exceptions include:
- The parents are not living together
- One of the parents joins the petition for visitation
- The grandchild has been adopted by a stepparent
- The child does not live with either parent
- At least one of the parent's locations is unknown (for at least one month)
- One of the parents has been institutionalized or incarcerated
If grandparent visitation rights are granted based on one of the above circumstances, the parent can petition to stop visitation rights after the situation no longer exists.
Grandparents and Child Custody
Grandparents can obtain custody of their grandchildren in some circumstances, particularly if the child’s parents are unable or unwilling to care for their child. Generally, a parent’s rights must be terminated before this can occur.
If you have questions about grandparents’ rights in California, contact the legal team at the Law Offices of Kayleene H. Writer by calling (949) 353-6151.