Unfortunately, many parents and their adult children, their children’s spouses, significant others, or domestic partners have strained relationships. This fact of life becomes even more exacerbated when grandchildren are involved and parents attempt to deny grandparents a relationship with their grandchild or grandchildren.

California has endeavored to address all of these prevalent issues through the enactment of Family Code Sections 3102-3104. However, even under these statutes, there are limitations on the visitation rights of grandparents with their grandchildren. The current status of grandparents’ rights under California law is discussed below.

A. RIGHTS OF GRANDPARENTS WHEN THE FATHER OF AN UNMARRIED MINOR CHILD dies:

1. Family Code Section 3102 states: “If either parent of an unemancipated minor dies, the … parents of the deceased parent may have reasonable visitation with the child during the child’s minority if it is determined that the visit would be in the best interest of the minor…”

2. WARNING: Even if, upon the death of a minor child’s parent, and the Court grants visitation rights to the grandparents, if the surviving parent remarries, AND the new spouse adopts the minor child, the grandparents’ right to continue visitation with the grandchild or grandchildren can, and will, be terminated IF both the adoptive parent and stepparent no longer want the grandparent to have continued visitation.

B. RIGHTS OF GRANDPARENTS WHEN THE PARENTS OF A MINOR CHILD ARE STILL MARRIED:

1. Family Code Section 3104 states that a petition to establish grandparent visitation rights MAY NOT be filed while the natural or adoptive parents are married, UNLESS one or more of the following circumstances exist:

a) The parents are currently living apart and separated permanently or indefinitely; EITHER

(b) One of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse; EITHER

c) One of the parents joins the petition with the grandparents; EITHER

d) The minor child does not reside with either parent; EITHER

e) The child has been adopted by a stepfather.

2. If any of the five (5) exceptions exist, then the grandparent may file a petition to establish grandparent visitation rights.

3. The grandparent petition MUST be served on each parent of the minor child, any stepparent of the grandchild, and any person having physical custody of the grandchild by PERSONAL SERVICE.

4. WARNING #1: Even if the conditions initially allow a court to consider a petition for grandparent visitation, when the grandchild’s parents are still married, if, at any later time, the qualifying conditions cease if any, the grandchild’s parent(s) may move the Court to terminate grandparent visitation, and the Court WILL GRANT THE TERMINATION (Family Code 3104(b)).

5. WARNING #2: If BOTH parents or adoptive parents agree that the grandparent should not be granted visitation with the grandchild/grandchildren, there is a “rebuttable presumption” that visitation from a grandparent IS NOT in the best interest of the child. a minor child (Family Code 3104(e)).

C. RIGHTS OF THE GRANDPARENTS WHEN THE PARENTS OF A MINOR CHILD ARE DIVORCE, LEGALLY SEPARATED OR WHEN A JUDGMENT OF NULLITY HAS BEEN GIVEN:

1. Family Code Section 3103 states: “…in a proceeding described in Section 3021 (e.g., dissolution of marriage, nullity of marriage, legal separation), the Court may grant reasonable visitation to a grandparent of a minor child of one of the parties to the proceeding if the court determines that grandparent visits are in the best interest of the child.”

2. Notice of the petition for grandparent visitation rights MUST be given, by certified mail, return receipt requested, to each parent of the grandchild, any stepparent, and any person having physical custody of the child.

3. The Court may grant reasonable visitation rights to the grandparents IF the Court does BOTH of the following:

a) Determines that there is a pre-existing relationship between the grandparent and the grandchild that has engendered a bond such that the visit is in the best interest of the child; Y

b) Balances the interest of the child in having visits with the grandfather against the right of the parents to exercise parental authority.

4. WARNING #1: If BOTH parents of a minor child agree that visitation rights should not be granted to grandparents, a rebuttable presumption is created, affecting the burden of proof, that visitation of a grandparent IS NOT in the best interest of a minor child (Family Code 3103(d)).

5. WARNING #2: If a parent in a divorce, legal separation, or annulment proceeding has been awarded SOLE legal AND physical custody of the minor child/children, and that parent objects to visitation by the grandparents, this will also create a rebuttable presumption, which affects the burden of proof, that visitation from a grandparent IS NOT in the best interest of the child (Family Code 3104(f)).