There may come a time in your life in which you need to get formal court ordered visitation rights for your grandchild in California. Fortunately, the process to do so is not that complicated. The evolving law pertaining to visitation rights of grandparents in California has certainly been rocky, and the rights of grandparents not always recognized. Read on to learn more about grandparent visitation rights in California and the specific criteria that will have to be met to obtain such an order.
History of Grandparent Visitation Rights in California
Historically in California, grandparent visitation has not always been permitted. In recent years, however, family dynamics have changed considerably. Today households consist of family members of multiple generations. Often grandparents and non-parents are raising, supporting, or caring for children in the family. With the changing landscape, California law has evolved to address California custody and visitation disputes as they pertain to the rights of grandparents.
Notwithstanding any other provision of law, in a proceeding described in Section 3021, the court may grant reasonable visitation to a grandparent of a minor child of a party to the proceeding if the court determines that visitation by the grandparent is in the best interest of the child. See Family Law Code section 3103.
The key focus in all court decisions involving children is “what is in the best interest of the child?” California Family Law Code Section 3102 allows relatives (including grandparents) visitation over the objection of the surviving parent. If a parent has died, the court will consider both a deceased parent’s wishes and the surviving parent’s decision in approving or denying grandparent’s visitation rights. California law further confirms that grandparents do not lose their rights even when a stepparent adopts their grandchild.
When Grandparents May Petition for Visitation
Grandparents may petition for visitation of their grandchildren if any of the following situations occur:
- The grandchild’s parents die
- While a family law case is pending in family court and custody is at issue
- The parents are not married to each other
- The parents live in separate households
In the event the parents are not married to each other, and the grandparent seeks visitation rights, the court will perform a balancing test. The test is used to decide if there is a bond between the grandparent and the child. This information will be balanced with the parents’ rights to raise their child.
If the parents are married, yet live in separate households, the court will consider the following information when granting grandparent visitation rights:
- Whether a parent knows the whereabouts of the other parent
- How long a parent has been absent from his/her child’s life
- Whether a parent supports the grandparent’s petition for visitation
- Where the child resides
- Whether the child has been adopted by a stepparent.
If both parents oppose the grandparent’s visitation order, the order will likely be denied. If this occurs, the grandparents will need to assert evidence that persuades the court that the visitation is in the child’s best interest.
How to File for Visitation Rights of Grandparents in California
Under California law, a grandparent can ask for reasonable visitation with their grandchild. The court must find the following to order reasonable visitation between the grandparent and child:
- There must be a pre-existing relationship between the grandparent and grandchild that has “engendered a bond.” Such a bond means that visitation is in the best interest of the child.
- Balance the interest of the child in having visitation with a grandparent with the rights of the parent to make decisions about their child.
Filing for Grandparent Visitation in Active Family Law Case
If there is an active family law case pending such as a divorce or legal separation involving the grandchildren, a grandparent must first join that family law case. This can be done by filing a Summons and Petition for Joinder. A Petition for Joinder is required when a grandparent wants to take part in an existing family law case to get visitation orders. In order to file a Petition for Joinder, the following documents will need to be filed:
- Summons (Joinder) (FL-375)
- Petition for Joinder
- Notice of Motion and Declaration for Joinder (FL-371)
Unfortunately, the Petition for Joinder is not a Judicial Council form, however some counties have established their own local form for this purpose. If there is no local form available, the Petition for Joinder will have to be prepared from scratch and submitted on court pleading paper.
Petitioning for Grandparent Visitation When No Active Family Law Case
If there is no pending family law case, a grandparent must file a new case by completing the following forms:
- Summons (FL-210)
- Petition/Complaint for Grandparent Visitation
- UCCJEA Declaration (FL-105)
- Request for Order (Form FL-300)
As with the Petition for Joinder, the Petition for Grandparent Visitation is also not a Judicial Council form. Some counties, however, have designed a local form for this purpose. If there is no local form, the Petition will have to be custom drafted on court pleading paper. The proceedings must be filed in the county where the child has resided for the previous six months and the applicable filing fees paid. The court clerk will set the matter for a formal hearing. After the filing of the paperwork, copies of all filed documents must be served on all interested parties (both parents). The Proof of Service (Form FL-330) must be filed with the court before attending the court hearing.
Contact A People’s Choice if you would like to file for grandparent visitation rights in California or learn more about how we can help you. You can reach us by calling 800-747-2780.