[this article has been updated for 2024 since it’s original publishing date]
Did you know that over 1 million children in the United States are being cared for by a grandparent with no parent present? Or that over 3.2 million children in the United States live in their grandparents’ home?
Given these statistics it’s clear the role of a Grandparent in a child’s life is often invaluable.
It can be devastating for all parties involved when a nuclear family has to be restructured due to divorce or legal separation and that disconnect results in the end of a relationship a grandparent has established with a grandchild.
Today, grandparents’ rights are a growing issue in family law throughout the United States and in California. While grandparents’ rights are not constitutional, the law is evolving.
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The History of Grandparents’ Rights
Currently, all 50 states have some type of “Grandparent Visitation Statute” through which grandparents can petition a court to grant them the legal right to visitation.
Some states will grant visitation only if the child’s parents are divorcing. Other states have less restrictive laws that allow the courts to consider a request for visitation even without the dissolution of a marriage as long as the visitation would serve the best interests of the child.
Under California family law a grandparent can request reasonable visitation rights when the parents divorce, even if both parents object.
The facts of the U.S. Supreme Court decision which have shaped the current laws afforded to grandparents in the United States are sad and unfortunate. In that case, Troxel v. Granville, a father, Brad Troxel, left behind two daughters and their mother Tommie Granville at the time of his death. The two parents were estranged. But Brad’s parents still maintained a strong relationship with their grandchildren and visited their grandchildren regularly after Brad’s death. After Tommie remarried, she limited the grandparents’ visits.
Ultimately, Brad’s parents went to court.
The trial court agreed that the state law which allowed for grandparent visitation applied to the Troxels’ as long as they were able to prove that visitation was in the best interest of the child.
However, the U.S. Supreme Court disagreed by stating that the applicable state law was “too broad” and that it infringed on a parent’s fundamental right to make decisions for her children. In the end, the U.S. Supreme Court struck down the trial court’s decision that granted the Troxel grandparents’ right to more visitation. But, the right was created. So now Grandparents can ask for the rights, but the court gets to weigh in on whether they are appropriate to give.
Seeking Visitation or Custody in California
California law recognizes and values the role of grandparents in a child’s life, providing them with the legal avenue to seek visitation or custody under various circumstances.
In the pursuit of ensuring the best interests of the child, grandparents in California can petition for visitation or custody in specific situations.
For example, a grandparent can file for visitation when the grandchild’s parents are divorced, not married, or separated. It also allows a grandparent to make a claim for visitation when the grandchild is not living with either parent. However, one of many factors that may have to be proven is that a relationship between the grandparent and child existed prior to the grandparent’s petition seeking visitation rights.
Under California law, one situation that would allow a grandparent to file for custody of a grandchild would be one where both parents have died or parental rights have been terminated due to a number of reasons.
There are many more circumstances in which custodial rights could be granted if it can be shown that it would be in the child’s best interest to take custody away from a parent.
Expanded Circumstances for Seeking Visitation
Grandparents have the right to file for visitation when the grandchild’s parents are divorced, unmarried, or separated. This encompasses a broad spectrum of family dynamics, acknowledging that the stability and presence of grandparents can contribute significantly to a child’s well-being during these challenging times. Moreover, even if the grandchild is not currently residing with either parent, a grandparent can still assert their right to visitation.
However, it is essential to note that one of the critical factors that may need to be established is the pre-existing relationship between the grandparent and the child. California law often requires evidence demonstrating a meaningful and substantial connection between the grandparent and the grandchild before granting visitation rights.
This emphasis on an established relationship reflects the court’s commitment to ensuring that the child’s best interests remain at the forefront of any legal decisions.
How do you demonstrate there is a pre-existing relationship?
Consistent Involvement in the Child’s Upbringing
A grandparent who has been actively involved in the child’s life by regularly attending school events, extracurricular activities, and medical appointments. The consistent presence and participation demonstrate a deep connection and commitment to the child’s well-being.
Shared Traditions and Special Moments
Grandparents who have established meaningful traditions with the grandchild, such as celebrating birthdays, holidays, or special milestones together. The shared history of creating lasting memories signifies a strong emotional bond that contributes to the child’s sense of stability and belonging.
Providing Emotional Support During Difficult Times
A grandparent who has played a significant role in providing emotional support during challenging periods, such as a divorce or the loss of a parent. The ability of the grandparent to offer comfort and reassurance becomes a crucial factor in demonstrating the positive impact of the relationship on the child’s emotional well-being.
Active Participation in Decision-Making
Grandparents who have actively participated in important decisions related to the child’s upbringing, such as education, healthcare, or extracurricular activities. Involvement in decision-making showcases the grandparent’s genuine interest in the child’s life and development.
Consistent Communication and Contact
Grandparents who maintain regular communication and contact with the grandchild, whether through phone calls, video chats, or in-person visits. The frequency and quality of communication contribute to a sense of continuity in the relationship, reinforcing the bond between the grandparent and the child.
Providing Financial and Practical Support
Grandparents who have provided financial assistance or practical support, such as helping with childcare, transportation, or educational expenses. The tangible contributions underscore the grandparent’s commitment to the child’s overall well-being and development.
Demonstrating a Positive Influence
Instances where the grandparent has been a positive influence on the child’s behavior, values, and moral development. This could include teaching important life lessons, instilling cultural or religious values, and serving as a role model for ethical conduct.
These examples collectively emphasize the multifaceted nature of the relationship between a grandparent and a child.
By showcasing consistent involvement, emotional support, shared experiences, and positive influence, grandparents can strengthen their case when seeking visitation rights, highlighting the tangible and intangible benefits of maintaining or establishing a connection with the child.
Petitioning for Custody under Specific Conditions
California law extends the possibility of grandparents seeking custody in situations where both parents have passed away or when parental rights have been terminated for various reasons. I
n these instances, the court recognizes the unique position of grandparents as potential caregivers and custodians, stepping in to provide the stability and support necessary for the child’s well-being.
Moreover, custodial rights may be considered under a broader range of circumstances if it can be convincingly demonstrated that such a change would be in the child’s best interest. The court takes into account factors such as the child’s emotional and physical well-being, the ability of the grandparents to provide a stable and nurturing environment, and any potential risks or challenges associated with leaving custody in the hands of a parent.
Best Interest of the Child Standard
In any petition for visitation or custody, the overarching principle guiding the court’s decision is the best interest of the child. California law places a paramount emphasis on ensuring that the child’s welfare, happiness, and overall development are prioritized. Grandparents seeking visitation or custody must be prepared to present compelling evidence that the proposed arrangement aligns with the child’s best interest.
Evidence supporting the best interest of the child may include the quality of the relationship between the grandparent and the child, the grandparent’s ability to provide a stable and loving home environment, and any potential adverse effects on the child if denied visitation or custody.
Navigating the Legal Process
Grandparents considering seeking visitation or custody in California should be aware of the legal intricacies involved. Consulting with an experienced family law attorney is crucial to understanding the specific requirements, gathering necessary evidence, and navigating the complex legal process.
Additionally, staying informed about recent updates in family law and court precedents is essential when updating or creating a legal strategy.
Family law is a dynamic field, and changes in legislation or court decisions may impact the outcome of a case.
Grandparents in California have legal avenues to seek visitation or custody in various family situations. Whether the parents are divorced, unmarried, or separated, or in circumstances where custodial rights need to be reassessed, the law prioritizes the child’s best interest. Establishing a strong case that emphasizes the existing relationship between the grandparent and the child, coupled with evidence supporting the child’s well-being, is crucial in navigating the legal process successfully.
By understanding the expanded circumstances and the importance of the best interest of the child standard, grandparents can assert their rights and play a meaningful role in the lives of their grandchildren.
Do Parents in California Have Rights When a Grandparent Petitions for Visitation?
The answer to this question is yes.
Unlike the evolving laws regarding grandparents’ rights, the right of parents to make decisions about raising their children is fundamental.
In the wake of the Troxel case, groups such as the Coalition for the Restoration of Parental Rights and the American Civil Liberties Union have championed the rights of parents and the U.S. Supreme Court’s decision. This is primarily because the decision affirmed the right of a fit parent to have the final say on how to rear their children.
This is so even if such decisions include limiting or excluding grandparent visitation based on the parents’ own belief that it is in the best interest of his or her child to have no visits, or only brief visits, from grandparents.
As mentioned at the beginning, having to restructure the family unit during or after a divorce is not an easy task. Every family is different, but every parent, every child, every grandparent will no doubt feel loss when relationships change due to dissolution.
Whether you are a parent trying to figure out the best way to maintain the stability of relationships that your kids have with the parents of an already, or a soon-to-be ex-spouse, or a grandparent who feels alienated from a grandchild, it is important to seek good legal advice.
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The family law attorneys at Minella Law Group have much experience dealing with the many issues that face families upon divorce. Call our attorneys at (619) 289-7948 if you are a parent or grandparent who needs help understanding or protecting your rights. The procedures for seeking visitation and or protecting your rights are complicated; we can help you.
