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  • Writer's pictureJames Chau

Grandparent and Step-parent Visitation

A topic that often comes up during a divorce is whether grandparents have a right to visitation after a divorce or if grandparents can petition the court for visitation rights. It’s a good question that doesn’t have one easy answer. For every part of the answer, there are caveats and exceptions.

Under California law Family Code §3104(a), the court can grant grandparents reasonable visitation, but only under certain circumstances. These circumstances are:

  • There must be a pre-existing relationship between the grandparents and grandchild that has “engendered a bond.” If there is a bond between the grandparents and grandchild, visitation could be seen as “in the best interests of the child,” which is always the gold standard for any legal decisions involving minor children.

  • If the court determines that visitation is in the best interests of the child, it must then be balanced against the rights of the parents to make decisions about their child.

Under Family Code §3104(b), for good reason, unless the parents are no longer married, the grandparents may not petition for visitation rights. The bar then creates exceptions, and those are if the parents are still married, grandparents may file for visitation under these circumstances:

  • The parents are living separately and apart on a permanent or indefinite basis,

  • A parent’s whereabouts are unknown (and have been for at least a month),

  • One of the parents joins the grandparent’s petition for visitation,

  • The child does not live with either of his or her parents,

  • A stepparent has adopted the grandchild,

  • One of the parents is incarcerated or voluntarily institutionalized.

While the courts take the best interests of the child very seriously and grandparents are afforded certain rights, the best interest of the child is weighed against the interest of the natural. In general, Courts strongly prefer the parents' rights over any non-parents, including grandparents. In California, there is a rebuttable presumption against grandparent visitation when the child’s natural parents are in agreement that visitation should not be granted.

The process is similar in step-parent visitation. Under Family Code §3101, the Court will make a determination if step-parent visitation is in the best interest of the child. The situation may arise when a step-parent develops a deep bond with a child through the marriage. That is not their natural child, and due to a divorce, the stepchild is now separated from the step-parent. Reasonable visitation may be awarded in those cases and of course, the best interest of the child would be analyzed.

If grandparents are interested in petitioning the court for visitation, they must usually find out if there is an open family law case between the parents, typically a divorce case. If there is no open case, they may file a brand new custody case. Of course, the going is not easy and is fraught with legal challenges.

While the answer to the question about grandparent visitation is not a solid no, there will be plenty of circumstances where a request for visitation will not be granted as not in the best interest of the child. It is recommended that grandparents seeking visitation attempt to resolve their issues with the parents outside the court system. Mediation is an option in cases such as this so the parties can discuss their needs and wishes in an open and safe environment and attempt to reach an agreement that is in the best interests of the child.

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