What Rights Do Grandparents Have in a Divorce?
Divorces that involve children can get messy, not just for parents, but also for grandparents. Grandparents want to know they can still visit their grandchildren in the case of a divorce or the death of their child.
Their persistence in pursuing visitation and custody has led many states to adopt their own rights for grandparents. Today we will look into visitation and custody rights afforded to grandparents in California.
First, do you have visitation rights in California?
Yes. Although visitation rights vary from state-to-state, under California law, a grandparent has the right to ask the court for reasonable visitation with a grandchild.
To grant a grandparent reasonable visitation with a grandchild, the California court must:
1.) Find that there was a pre-existing relationship between grandparent and grandchild that has “engendered a bond.” In short, they must confirm there is a bond between the grandparent and grandchild that warrants visitation is in the grandchild’s best interest.
2.) Balance the best interest of the child in having visitation with a grandparent against the right of the parent to exercise parental authority. The court will likely presume visitation is not in the best interest of the child if both parents agree that the court should not grant it.
Grandparents cannot generally file for visitation rights while the grandchild’s parents are married, but there are exceptions:
- The parents live in separate dwellings
- One parent’s whereabouts are unknown, and have been for at least one month
- One parent joins the grandparent’s petition for visitation
- The grandchild doesn’t live with either of his parents
- The grandchild has been adopted by a stepparent
Visitation granted by the courts based on these exceptions is not necessarily permanent. If things change and the exceptions no longer apply, one or both parents can ask the courts to end the rights. The courts will most likely oblige.
Keep in mind that the above information is only a brief summary of California’s laws governing grandparents’ rights to visitation. Read California Family Code sections 3100-3105 for additional criteria and exceptions that may apply to your case.
Parents have the ultimate say.
Fit parents have the exclusive legal right to determine who visits their children.
Case in point: Troxel v. Granville. The State Supreme Court overruled a Washington state ruling, which was in favor of two grandparents’ request for additional visitation rights with the child of their recently deceased son. The ruling was against the wishes of the mother and in the end, was found to “unconstitutionally infringe on parents’ fundamental right to rear their children.”
It’s in the best interest of grandparents to maintain a healthy relationship with the parents of their grandchildren.
What if my grandchild moves from California?
Thanks to the Visitation Rights Enforcement Act, grandparents can visit their grandchildren anywhere in the United States as long as they have been granted visitation rights in one state.
What happens if my adult child dies?
Your child’s passing will not change your already established visitation rights.
“Many courts are in favor of awarding visitation rights to grandparents under such circumstances, as it may help the child remember the parent they lost in a manner that is beneficial to their healthy development,” says San Diego divorce attorney John Griffith. “The grandparents must meet California Family Code criteria.”
- What if your adult child was the custodial parent?
If your child was the custodial parent, and your grandchild is a minor, the surviving parent is immediately entitled to sole custody unless it is determined to not be in the child’s best interest. At this point you can contest visitation through an independent proceeding. In California, grandparents would file a California Family 3104 visitation petition.
If your child passed away while he was still married to his spouse, you are eligible to apply for visitation rights.
What if my grandchild is adopted?
Adoption does not automatically cut off the visitation rights you were granted in California.
Can I be awarded custody of my grandchild?
Possibly. There are two options for gaining custody or rights to care for a minor as a nonparent: guardianship and adoption.
Probate guardianships are awarded to the nonparent the child is living with so they can make decisions on behalf of the child.
- Parent(s) still have rights and may be awarded reasonable contact
- Court can end if parents become capable of rearing the child
- Guardians can be supervised by the court
Grandparents awarded “guardianship of the person” are responsible for the child’s care, including providing food, clothing, shelter, emotional support, medical and dental care, education and other special needs.
- Parent’s rights are permanently ended
- Legal relationship with adoptive parents is exactly the same as a birth family
- Adoptive parents are not supervised by the court
Although there are many legal actions that can be taken to gain visitation with your grandchild, it is one of those issues that is best solved outside of court when possible. This isn’t necessarily done at a family picnic, but through mediation with an experienced attorney. Our team of divorce attorneys can help you determine which approach best suits your unique situation.