Grandparents usually have as strong an attachment to their grandchildren as they did to their own children and divorce or separation can be a devastating event that can lead to feared separation from grandchildren. In earlier days, grandparents were commonly awarded visitation rights within the jurisdiction of residency. However, upon move by the custodial parent, the grandparents were commonly faced with additional litigation in an effort to obtain visitation as grandparents in the child’s new state of residency.
However, in the year 1998, The Visitation Rights Enforcement Act (“Act”) was enacted. This was a major improvement in achieving a uniform state visitation law making provisions for grandparent visitation consistent from state to state. The Act states that grandparents can visit their grandchildren anywhere in the United States as long as they have visitation rights in one state. This law does not impose a federal decision about a grandparent’s visitation rights in any state. It calls for reciprocal recognition of grandparents’ rights once a state has established those rights.
However, in some states the Act has been interpreted loosely providing many grandparents with no visitation rights of grandchildren in specific situations, i.e. death of a child. Therefore, even with the Act, grandparents can never be sure that they will always have ongoing access to a grandchild. Please read our article on Child Custody and Visitation.
To determine your rights as a grandparent, you have to determine the law of your own state and the state in which the grandchild now resides.
California Law:
Div. 8, Part 2, Chap. 5, §3102
If either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the child’s minority upon a finding that the visitation would be in the best interest of the minor child.
In granting visitation pursuant to this section to a person other than a grandparent of the child, the court shall consider the amount of personal contact between the person and the child before the application for the visitation order.
This section does not apply if the child has been adopted by a person other than a stepparent or grandparent of the child. Any visitation rights granted pursuant to this section before the adoption of the child automatically terminate if the child is adopted by a person other than a stepparent or grandparent of the child.
Div. 8, Part 2, §3103
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.
If a protective order as defined in Section 6218 has been directed to the grandparent during the pendency of the proceeding, the court shall consider whether the best interest of the child requires that visitation by the grandparent be denied.
The petitioner shall give notice of the petition to each of the parents of the child, any stepparent, and any person who has physical custody of the child, by certified mail, return receipt requested, postage prepaid, to the person’s last known address, or to the attorneys of record of the parties to the proceeding.
There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the child’s parents agree that the grandparent should not be granted visitation rights.
Visitation rights may not be ordered under this section if that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding.
Visitation ordered pursuant to this section shall not create a basis for or against a change of residence of the child, but shall be one of the factors for the court to consider in ordering a change of residence.
When a court orders grandparental visitation pursuant to this section, the court in its discretion may, based upon the relevant circumstances of the case:
Allocate the percentage of grandparental visitation between the parents for purposes of the calculation of child support pursuant to the statewide uniform guideline (Article 2 (commencing with Section 4050) of Chapter 2 of Part 2 of Division 9).
Notwithstanding Sections 3930 and 3951, order a parent or grandparent to pay to the other, an amount for the support of the child or grandchild.
For purposes of this paragraph, “support” means costs related to visitation such as any of the following:
Transportation.
Provision of basic expenses for the child or grandchild, such as medical expenses, day care costs, and other necessities.
As used in this section, “birth parent” means “birth parent” as defined in Section 8512.
Div. 8, Part 2, §3104
On petition to the court by a grandparent of a minor child, the court may grant reasonable visitation rights to the grandparent if the court does both of the following:
Finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child.
Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.
A petition for visitation under this section may not be filed while the natural or adoptive parents are married, unless one or more of the following circumstances exist:
The parents are currently living separately and apart on a permanent or indefinite basis.
One of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse.
One of the parents joins in the petition with the grandparents.
The child is not residing with either parent. At any time that a change of circumstances occurs such that none of these circumstances exist, the parent or parents may move the court to terminate grandparental visitation and the court shall grant the termination.
The petitioner shall give notice of the petition to each of the parents of the child, any stepparent, and any person who has physical custody of the child, by personal service pursuant to Section 415.10 of the Code of Civil Procedure.
If a protective order as defined in Section 6218 has been directed to the grandparent during the pendency of the proceeding, the court shall consider whether the best interest of the child requires that any visitation by that grandparent should be denied.
There is a rebuttable presumption that the visitation of a grandparent is not in the best interest of a minor child if the natural or adoptive parents agree that the grandparent should not be granted visitation rights.
There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the parent who has been awarded sole legal and physical custody of the child in another proceeding or with whom the child resides if there is currently no operative custody order objects to visitation by the grandparent.
Visitation rights may not be ordered under this section if that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding.
Visitation ordered pursuant to this section shall not create a basis for or against a change of residence of the child, but shall be one of the factors for the court to consider in ordering a change of residence.
When a court orders grandparental visitation pursuant to this section, the court in its discretion may, based upon the relevant circumstances of the case:
Allocate the percentage of grandparental visitation between the parents for purposes of the calculation of child support pursuant to the statewide uniform guideline (Article 2 (commencing with Section 4050) of Chapter 2 of Part 2 of Division 9).
Notwithstanding Sections 3930 and 3951, order a parent or grandparent to pay to the other, an amount for the support of the child or grandchild.
For purposes of this paragraph, “support” means costs related to visitation such as any of the following:
Transportation;
Provision of basic expenses for the child or grandchild, such as medical expenses, day care costs, and other necessities.
As used in this section, “birth parent” means “birth parent” as defined in Section 8512.
Grandparents and Custody:
Grandparents in every state in the United States have rights, in certain circumstances, to be awarded child custody of their grandchildren or to be awarded court-mandated visitation with their grandchildren. Grandparents’ rights are not constitutional in nature, nor did they exist at common law. Recognition of grandparents’ rights by state legislatures is a fairly recent trend and most of the statutes have been in effect for less than forty years.
Federal legislation may affect grandparents’ rights, though these rights are based primarily on state law. Congress passed the Parental Kidnapping Prevention Act in 1980, which requires that each state give full faith and credit to child custody decrees from other states. Federal legislation passed in 1998 also requires that courts in each state recognize and enforce grandparental visitation orders from courts in other states. All states have adopted a version of the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA,” previously the Uniform Child Custody Jurisdiction Act), which requires courts in the state where a child resides to recognize and enforce valid child custody orders from another state. Though the UCCJEA is not a federal statute, the provisions of this uniform law as adopted in each state are similar.
Some courts have determined that state statutes providing visitation to grandparents are unconstitutional. The United States Supreme Court in the case of Troxel v. Granville (2000) determined that the Washington visitation statute violated the due process rights of parents to raise their children. This case and similar decisions by state courts caused several state legislatures to consider bills that would modify or completely revise the visitation rights in those states. Most state laws related to grandparent rights, however, have survived intact. Nevertheless, grandparents who seek to attain visitation rights should check the current status of state legislation in their respective states.
Courts grant visitation or custody to grandparents only when certain conditions provided in state statutes are met. Conditions for a grandparent to attain custody differ from those conditions required for visitation rights. A grandparent should be familiar with the conditions for either custody or visitation before determining whether to file a petition to request either from a court of law.
Courts in every jurisdiction must consider the “best interest of the child” when granting custody or visitation rights to a grandparent. In some states, the relevant statute provides a list of factors the court should considered when determining a child’s best interests. Other states do not provide factors in the statute, but courts in those states typically identify factors in custody and visitation cases interpreting the state statutes.
The following factors in determining the best interest of the child are among those included in state statutes and case law:
- The needs of the child, including considerations of physical and emotional health of the child, the safety of the child, and the welfare of the child
- The capability of the parents and/or grandparents to meet the needs of the child
- The wishes of the parent(s) and the grandparent(s)
- The wishes of the child, if the child is capable of making decisions for himself or herself
- The strength of the relationship between the grandparent(s) and grandchild
- The length of the relationship between the grandparent(s) and grandchild
- Evidence of abuse or neglect by the parent(s) or grandparent(s)
- Evidence of substance abuse by the parent(s) or grandparent(s)
- The child’s adjustment to the home, school, or community
- The ability of the parent(s) or grandparent(s) to provide love, affection, and contact with the child
- The distance between the child and the parent(s) or grandparent(s)
Statutory provisions for child custody (termed “conservatorship” in a few states) are usually less specific than the statutes regarding grandparent visitation. Courts must first consider the relationship of the parent or parents with the child before considering whether granting custody to grandparent(s) is appropriate. Several states specifically include consideration of grandparents as custodians if both parents are deceased. If either or both parents are alive, courts in most states will presume that the parent of the child should retain custody. Grandparents must generally prove the parent(s) unfit in order to overcome the judicial presumption in favor of the parent. Even if the relationship between the grandparent and grandchild is strong, it is very difficult for a grandparent to attain custody of a grandchild against the wishes of the parent or parents.
State statutes providing visitation to grandparents generally require that a number of conditions occur before visitation rights can be granted. The marital status of the parents must be considered in a majority of states before a court will evaluate the relevant factors to determine if visitation is appropriate. In some of these states, the parents’ marital status is considered only if the grandparent or grandparents have been denied visitation by the parents. In other states, marital status is considered only if the grandchild resided with the grandparents for a certain length of time.
A minority of states require that at least one parent is deceased before a court can award visitation to the parent of the deceased parent of the child. For example, a maternal grandparent in one of these states may be awarded visitation only if the mother of the child is deceased.
Effect of Adoption:
State statutes vary in their treatment of cases in which a grandchild has been adopted. In several states, adoption by anyone, including a stepparent or another grandparent, terminates the visitation rights of the grandparent. In some states, adoption by a stepparent or another grandparent does not terminate visitation rights, but adoption by anyone else does terminate these rights. In other states, adoption has no effect on the visitation rights of grandparents, so long as other statutory requirements are met.
Once the statutory conditions for visitation are met, grandparents must establish the factors that courts may or must consider to grant visitation rights. In every state, grandparents must prove that granting visitation to the grandchild is in the best interest of the child. Several states also require that the court consider the prior relationship between the grandparent and the grandchild, the effect grandparental visitation will have on the relationship between the parent and child, and/or a showing of harm to the grandchild if visitation is not allowed.
Further California Law on Grandparents’ Rights:
Conditions for grandparent visitation rights include a determination of whether a parent is deceased, the child’s parents are divorced or separated, the whereabouts of one parent is unknown, or the child is not residing with either parent. In addition to determining that visitation is in the child’s best interests, the court must find that the grandparents had a preexisting relationship with the grandchild. The court must also balance visitation with the parents’ rights. If both parents agree that the court should not grant visitation to the grandchild, the court will presume that visitation is not in the child’s best interests. Adoption does not automatically cut off the visitation rights of grandparents.
Practicalities:
As with so much in law, it is tempting to utilize all litigation tools at one’s disposal simply because one can. In the United States one can go to court as a matter of right and grandparents, in the emotional turmoil of wishing to see grandchildren now possibly cut off by divorce or distance, are often so upset that the decision to utilize the tools of litigation can be automatic.
Those tools are there and if the grandchildren are truly in need of care and protection, the grandparent should not hesitate to use the legal system. However, if the struggle is over whether parents or grandparents can control access to or custody of grandchildren, the parents will usually win unless the grandparents can show a lifestyle of the parent(s) that is truly threatening to the child. Drugs, crime, neglect and abuse are obvious examples of situations in which grandparents should seriously consider legal action. However, differences in how to raise a child or a parent’s decision to move out of State will seldom convince a court to grant grandparent’s exceptional custody or visitation.
There is, at times, a prejudice against the ability of grandparents to raise and handle children, especially teenagers, and that mindset can result in courts feeling that anyone, however young, will have more energy to handle the situations that teenagers can create. See Planning the Glorious Death. That prejudice should be recognized by the grandparent seeking custody and proof of continued good health, determination to raise the child, and physical and mental ability to raise the child should be presented whether the court requests it specifically or not. A parent contesting such custody is sure to advance that argument either directly or by inference. Meet it head on…and be honest with yourself. If that 17 year old challenges your authority, how do you intend to handle it?
Attorneys, often paid by the hour, can be too optimistic about the chances of success and the grandparent has an uphill battle to overcome the presumption of the parent knowing best. But if evidence exists of potential harm to the child, courts will be proactive in protecting the child and each grandparent should carefully consider whether the child’s objective welfare…or the grandparent’s subjective opinions…are what is at stake. If the former, consult an attorney. If the latter, realize that parents have first rights in determining how best to raise their child and where the child will live.