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Do Grandparent’s Have Right to Formal Visitation in California?

Do Grandparent’s Have Right to Formal Visitation in California?

Like most states, California law limits the access a grandparent has to a grandchild.   Parents have a fundamental liberty to make decisions about their children’s care, custody and control.  This includes the right to make a decision whether to allow contact with a grandparent.  

A grandparent will have a very difficult time convincing a court to allow them “visitation” time with a grandchild if the child’s parents are “fit” parents and already allow a grandparent even a small degree of contact with the child.

If you seek a formal visitation order from the court, you will have to overcome a rebuttable legal presumption that visitation with your grandchild is not in his or her best interest.  It will also be your legal burden to rebut the presumption that visitation with your grandchild is not in the child’s best interest if the grandchild’s parent (even if it is your own child) who has sole legal and physical custody of your grandchild objects to visitations between you and your grandchild, or if the parent with whom your grandchild lives objects to visitations, even if that parent does not have a formal custody order. 

The court will grant visitation rights to a grandparent upon a finding that visitation is in the child’s best interest; there is a pre-existing bond between the child and grandparent that would justify the visitation order; and the child’s best interest outweighs a parent’s right to exercise parental authority. The third element is particularly difficult to overcome.

Presently, the law allows three instances in which a grandparent may prevail regarding visitation with their grandchild:

1)     During the parent’s marriage if one of more of the following exists: the parents are living apart; one parent is absent and his or her whereabouts are unknown; one parent joins in the grandparent’s petition; or the child does not live with either parent.   Assuming visitation is granted, if none of these circumstances cease to exists, the court must terminate the grandparent visitation.

2)     The parents separate and during a custody proceeding, a grandparent may seek a visitation order from the court.  The grandparent must follow formal requirements including filing a Petition with the court, and give notice of the Petition to both parents, anyone who has physical custody of the grandchild and the child’s stepparent(s), if any, by certified mail.  The grandparent must again rebut the legal presumption that visitation with the grandchild is not in the child’s best interest if both parents (albeit separated and possibly going through a divorce) agree that the visitation should not be ordered by the court.

3)     A grandparent, as the parent of a deceased parent, may seek visitation with their grandchild.  Even in cases where a parent has dies, the best interest of the child is still controlling regarding the visitation between grandparent and grandchild. 

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