Individuals other than parents can petition the court for visitation rights in California. The court has the discretion to grant visitation rights to any person that has a significant interest in the welfare of the child. Every case is different, and the court will make a determination based on the best interest of the child.
WHEN CAN GRANDPARENTS PETITION FOR VISITATION?
In general, a parent's rights are more important than grandparents rights under California law, and it is not easy to trump a parent's objection to visitation. However, there are certain circumstances where grandparents will be granted reasonable visitation.
The court must do two things when determining whether to grant reasonable visitation to a grandparent:
- Find that there is a pre-existing relationship between the grandparent and child and that this relationship created such a strong bond that visitation would be in the best interest of the child.
- Balance the interest of the child having grandparent visitation against the right of the parent to exercise parental authority.
The court will grant grandparent visitation if it finds that the visitation is in the best interests of the child after completing the above analysis. The court will try and strike a balance between the grandparent's right to visitation and the parent's right to make decisions about their child's care and custody.
There is a presumption that grandparent visitation is not in the best interest of the child if both parents agree that it should not be granted. Furthermore, there is a presumption that it is not in the best interest of the child if the parent with sole legal and physical custody of the child objects. This means that it will generally be easier for a grandparent to get visitation if the parent with sole custody of the child joins the petition.
When a grandparent decides to petition the court for visitation, they can either join the divorce proceeding, or they can initiate their own action in family court. The grandparent must give notice of the petition to each parent of the child, any stepparent, and any person who has physical custody of the child. The notice must be given by certified mail, return receipt requested, postage prepaid, to the person's last known address, or to the attorney on record.
WHEN CAN'T GRANDPARENTS PETITION FOR VISITATION?
In general, grandparents cannot petition for visitation while both of the parents are married unless one of the following exceptions apply:
- The parents are living separate and apart on a permanent basis;
- One parent has been absent for at least one month, and the other parent does not know where they are;
- One parent joins that petition with the grandparent;
- The child is not residing with either parent;
- A stepparent has adopted the child; or
- One of the parents is incarcerated or involuntarily institutionalized.
Even if one of the exceptions applies, the court still must determine that visitation would be in the child's best interest. If a grandparent is granted visitation and one of the above exceptions changes, the parent can petition the court to end the visitation rights. The visitation will not terminate automatically.
VISITATION FOR OTHER FAMILY MEMBERS AND THIRD PARTIES
Family members and third parties other than the grandparents can also petition for visitation. The court will enter with the presumption that the parent's objection to the visitation is in the best interest of the child. The third party will have to prove that not having visitation is detrimental to the child's best interests.
If either parent has died, the court can grant visitation to the children, siblings, parents, and grandparents of the deceased parent. For any person besides the child's grandparents, the court will take into consideration how often the individual saw the child before they petitioned for visitation. A person cannot swoop into a child's life after the fact and ask for visitation. Finally, the court will not grant visitation rights if the child was adopted by someone other than a stepparent or grandparent.
MEET WITH A FAMILY LAW ATTORNEY
Strong bonds can form between children and family members or friends. It can be devastating if divorce or other circumstances threaten your relationship with a child. If you have questions about a grandparent or other third party visitation, you should reach out to an experienced San Jose family law attorney.
With over 30 years of experience, the Moreno Family Law Firm has handled numerous visitation cases in the San Jose area. They can help you determine whether you can petition the court for visitation and will aggressively advocate for your rights. Call Moreno Family Law Firm today at 408-266-9011 for a consultation.