[this article has been updated for 2023 since it’s original publishing date in 2019]
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.
Seeking Visitation or Custody in California
California law gives grandparents the right to petition for visitation in one of many circumstances.
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.
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.
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.