| Sadly, many parents and their adult children, their | | | | 4. CAVEAT #1: Even if the conditions initially allowing |
| children's spouses, significant others, or domestic | | | | a Court to entertain a petition for grandparent |
| partners, have strained relationships. This fact of life | | | | visitations, when the grandchild's parents are still |
| becomes even more exacerbated when there are | | | | married, should, at anytime thereafter, the qualifying |
| grandchildren involved, and the parents attempt to | | | | conditions cease to exist, the grandchild's parent or |
| deny the grandparents a relationship with their | | | | parents may move the Court to terminate |
| grandchild or grandchildren. | | | | grandparent visitations, and, the Court SHALL |
| California has endeavored to address this all to | | | | GRANT THE TERMINATION (Family Code,3104(b)). |
| frequent problem by the enactment of Family Code, | | | | 5. CAVEAT #2: If BOTH parents or adoptive parents |
| Sections 3102-3104. However, even under these | | | | agree that the grandparent should not be granted |
| statutes, there are limitations on grandparent's rights | | | | visitations with the grandchild/grandchildren, there is a |
| to visitations with their grandchildren. Discussed below | | | | "rebuttable presumption" that the visitation of a |
| is the current state of grandparent's rights under | | | | grandparent IS NOT in the best interests of a minor |
| California law. | | | | child (Family code 3104(e)). |
| A. GRANDPARENTS'S RIGHTS WHERE THE PARENT | | | | C. GRANDPARENT RIGHTS WHERE THE PARENTS |
| OF AN UNMARRIED MINOR CHILD IS DECEASED: | | | | OF A MINOR CHILD ARE DIVORCED, LEGALLY |
| 1. Family Code, Section 3102 provides that: "If either | | | | SEPARATED, OR WHERE A JUDGMENT OF NULLITY |
| parent of an unemancipated minor child is deceased, | | | | HAS BEEN ENTERED: |
| the...parents of the deceased parent may be granted | | | | 1. Family Code, Section 3103 provides: "..in a |
| reasonable visitations with the child during the child's | | | | proceeding described in Section 3021 (eg dissolution |
| minority upon a finding that the visitation would be in | | | | of marriage, nullity of marriage, legal separation), the |
| the best interests of the minor child..." | | | | Court may grant reasonable visitation to a |
| 2. CAVEAT: Even if, upon the death of a minor child's | | | | grandparent of a minor child of a party to the |
| parent, and the Court granting of visitation rights to | | | | proceeding if the Court determines that visitation by |
| the grandparents, should the surviving parent | | | | the grandparent is in the best interests of the child.." |
| remarry, AND, the new spouse adopts the minor | | | | 2. Notice of the grandparent's petition for visitation |
| child, the grandparent's right to continued visitation | | | | rights MUST be given, by certified mail, return receipt |
| with the grandchild or grandchildren can, and will be | | | | requested, to each parent of the grandchild, any |
| terminated, IF both the parent and adoptive | | | | stepparent, and, to any person who has physical |
| stepparent no longer wish the grandparent to have | | | | custody of the child. |
| continued visitations. | | | | 3. The Court may grant reasonable visitation rights to |
| B. GRANDPARENT RIGHTS WHERE THE PARENTS | | | | the grandparent IF the Court does BOTH of the |
| OF A MINOR CHILD ARE STILL MARRIED: | | | | following:a) Finds that there is a preexisting |
| 1. Family Code, Section 3104 provides that a petition | | | | relationship between the grandparent and the |
| to establish grandparent visitation rights MAY NOT BE | | | | grandchild that has engendered a bond such that |
| FILED while the natural or adoptive parents are | | | | visitation is in the best interests of the child;ANDb) |
| married, UNLESS one or more of the following | | | | Balances the interests of the child in having visitations |
| circumstances exist:a) The parents are currently living | | | | with the grandparent against the right of the parents |
| separate and apart on a permanent or indefinite | | | | to exercise their parental authority. |
| basis;ORb) One parent has been absent for more | | | | 4. CAVEAT # 1: If BOTH parents of a minor child |
| than one month without the other spouse knowing | | | | agree that the grandparent should not be granted |
| the whereabouts of the absent spouse;ORc) One | | | | visitations rights, a rebuttable presumption is created, |
| parent joins in the petition with the | | | | effecting the burden of proof, that the visitation of a |
| grandparents;ORd) The minor child is not residing with | | | | grandparent IS NOT in the best interest of a minor |
| either parent;ORe) The child has been adopted by a | | | | child (Family Code 3103(d)). |
| stepparent. | | | | 5. CAVEAT # 2: If one parent in a divorce, legal |
| 2. If any of the five (5) exceptions exist, then the | | | | separation, or nullity proceeding has been awarded |
| grandparent may file his/her/their petition to establish | | | | SOLE legal AND physical custody of the minor child |
| grandparent visitation rights. | | | | children, and, that parent objects to visitation by the |
| 3. The grandparent's petition MUST be served on | | | | grandparent, this also will create a rebuttable |
| each parent of the minor child, any stepparent of the | | | | presumption, affecting the burden of proof, that |
| grandchild, and, any person who has physical custody | | | | visitation of a grandparent IS NOT in the best |
| of the grandchild by PERSONAL SERVICE. | | | | interests of the minor child (Family Code 3104(f)). |