We often have grandparents come through our double doors asking us this very question. The answer, as it usually is in law, it depends.
To best understand why “it depends”, you need to look at your case the same way the Court will. The Court, in coming to its conclusion looks directly to Family Code Section 3104. What this Section does is nothing more than simply tell the court what to follow. The court uses Family Code Section 3104 to compare your case against it and ultimately, tell the court if the grandparent has any visitation rights. Therefore, we need to analyze Section 3104 and compare and contrast it with your case.
Since we cannot compare and contrast your individual case with this Section over a blog for you, we will do the next best thing, which is break down the law.
Here, we will simplify the process for you by breaking down the important parts of this Section. In the end, hopefully you will be able determine on your own or with the help of our firm, Sullivan, Krieger, Truong, Spagnola & Klausner if you have visitation rights as a grandparent.
Family Code Section 3104 begins by describing that the Court cannot grant grandparent visitation unless two conditions are met at the outset. The court must find 1) that there is a preexisting relationship between the grandparent and child that is best interest of the child and 2) the court must balance the interest of the child having visitation with the grandparent against the right of the parents to exercise their authority. Essentially, if the court can find that there is a good preexisting relationship with the grandparents and the visitation is not hindering the ability of the parent to parent then the court can move forward.
Next, the Section states, that a petition by the grandparent cannot be filed while the parents are married unless any of the following six fact intensive scenarios arise: 1) The parents are currently living separately and apart on a permanent or indefinite basis, 2) one of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse, 3) one of the parents joins the petition with the grandparents, 4) the child is not residing with either parent, 5) the child has been adopted by a stepparent, and 6) which was recently amended in January 2015, one of the parents is incarcerated or involuntarily institutionalized.
Here, we can finally take a deep breath and determine the answer to the initial question posed above, which is yes. As it turns out, grandparents do have visitation rights, but very limited ones. If the grandparent’s case does not fall into one of the six instances above, they likely do not have any visitation rights. The reasons is, the California Legislature tends to view, and rightfully so, that the parent is in control of the child’s life.
If the stubborn grandparent refuses to believe the California Legislature thinks the parents are in charge, the rest of the Section will clearly convey them that they are.
Section 3401 continues to read, even if the grandparent has been granted visitation by the court, at any time, if there is a change in circumstances and none of the six scenarios exist, the parents may terminate the grandparental visitation and the court will approve it. Also, there is a rebuttable presumption that the visitation of a grandparent is not in the best interest of a minor child if the parents agree that the grandparent should not be given visitation rights. Even further, parents can object to visitation, visitation cannot conflict with custody or visitation with a birth parent and it cannot change the basis for the change in the residence of the child.
As a result, it is abundantly clear that under Family Code Section 3401 the California Legislature wants the parents to have priority over their child’s life, with the exception of six circumstances. Therefore, grandparents, if you want visitation rights as applied to this Section, you must be able to analogize those six scenarios to your case and meet the aforementioned requirements before it.
So grandparents, do you have a right to visitation with your grandchild? It depends, doesn’t it? Where do your facts take you?
If you have any questions regarding this or any other Family Law topics, do not hesitate to contact our offices at 1-877-877-1-LAW or reach us at www.sullivankrieger.com. We would be glad to help you.Read More