In many families, grandparents are deeply involved in their grandchildren’s lives. Sometimes, they may even take on the role of parent. However, after a divorce, grandparents may wonder whether they have visitation rights under the law. To learn more about grandparent’s rights in California, speak to a family law attorney at the Law Office of Rick D. Banks today.
When Can Grandparents Request Visitation?
Even without a court order, parents can always allow a grandparent visitation with their children. But what happens if a parent decides to stop allowing these visits? In these cases, the grandparent has a right to petition the court for visitation.
However, if the child’s parents are still married, California law won’t allow grandparents to petition for visitation, unless:
- Both parents are separated
- One parent has been missing for a month or longer
- One parent joins the grandparent’s petition for visitation
- The child no longer lives with either parent
- A stepparent adopted the child, or
- One parent is involuntarily institutionalized or incarcerated.
If a grandparent’s visitation is based on one of the above circumstances, but the circumstances change or cease to exist, the parents can request the court to terminate grandparent visitation. For instance, if the parents decide to move back in together after having been separated, they can ask the court to end the grandparent visitation.
What Does the Court Consider When Granting Grandparent Visitation?
When petitioning for grandparent’s rights in California, grandparents must give a copy of the document to both parents and any other person with physical custody of the child. After submitting the petition, the court will automatically send the case to mediation. During mediation, if the parents and grandparent cannot settle, then the mediator must notify the court. This will result in a hearing before a judge.
It’s important to remember that the court automatically presumes grandparent visitation shouldn’t be granted if both parents agree against it. This means that the burden of proof is always on the grandparent. The grandparent must effectively argue that their visitation will serve in the child’s best interests, or they will not be granted visitation.
The court will consider the following factors when determining if grandparent visitation will serve in the child’s best interests:
- The child’s well-being, health and safety
- Any history of abuse by the person seeking visitation or custody
- Any history of drug or alcohol use
- The amount of time the person seeking visitation has spent with the child
The court must establish any pre-existing relationship between the grandparent and grandchild. If both share a healthy and significant relationship, then keeping that relationship alive will serve in the child’s best interests. This fact must also be balanced against the parent’s insistence that such a relationship should not exist. For cases with children aged 14 or older, the court may even take the child’s opinion into consideration.
Grandparent’s Rights in California After Adoption
California law states that when a child is adopted by someone outside the family, then all visitation rights for the previous family end. The adoption of a child severs the relationship between child and parent, as well as all the parent’s relatives. However, if the child is adopted by someone else in the family, such as a stepparent or another grandparent, then a grandparent’s right to visitation can still continue.
Can Grandparents Win Custody of Their Grandchild?
California courts can award custody to any person who can provide a good home to a child. However, judges will always try to award custody to a parent first, if that parent is fit for custody. If both parents are not fit enough for custody, then the court will look towards another person in the child’s current residence. That is of course if the current residence is a stable and wholesome environment.
Children with parents who cannot care for them often live with their grandparents. Because of this, many grandparents are awarded legal custody of their grandchildren. Furthermore, if a child does not currently live with their grandparents, and their parents cannot provide a stable environment, then the court will award custody to anyone who can provide a good home. That includes grandparents without current physical custody.