Grandparent Visitation "Rights"

Is There a Right to Grandparent Visitation?

Yes, sort of. There is a California statute that provides for grandparent visitation with their grandchildren; however there are overriding constitutional limitations if a parent is opposed to it.

In addition, before grandparent visitation can be ordered, it must be shown that there is a pre-existing "deep and abiding relationship," between the child and the grandparent, and that visitation with a grandparent is in the best interests of the child.

If the parent/s, objects to grandparent visitation, there is a presumption that grandparent visitation would not be in the best interest of the child, and that presumption can only be overcome by clear and convincing evidence that the denial of grandparent visitation would be detrimental to the child.

Circumstances where grandparent visitation may be allowed:

Subject to those limitations, Grandparents have a statutory right to visitation in the following circumstances:

WHERE BOTH PARENTS ARE ALIVE grandparent visitation may be ordered [subject to the "best interests" and "deep and abiding relationship" and parental objection limitations and requirements above] in the following circumstances:

1. Where the parents are unmarried or living apart permanently or indefinitely;
2. Where one of the parents joins in the petition.
3. Where custody proceedings initiated by someone other than the grandparents are pending;
4. The child is not residing with either parent.
5. The child has been adopted by stepparent.

WHERE ONE OF THE PARENTS IS DECEASED, visitation may be ordered subject to the above limitations and requirements.

As a practical matter, these cases are very difficult for grandparents as it is usually the parents of the deceased parent who are seeking visitation from an indifferent or hostile surviving spouse. The court's grant much discretion and latitude to the custodial parent in deciding the terms and nature of any contact with the grandparent.

Where there is parental objection, the best chance for court ordered grandparent visitation is if the parent has totally denied any contact between the grandparent and the grandchild, or has not offered "meaningful visitation."

Where the parent has offered some visitation, but not as much as the grandparent wants, or if there are conflicts about the details of visitation, the courts are reluctant to interfere with the parental decision, as the United States Supreme Court has recognized a constitutional right of the parent to make decisions regarding their children.

Courts have used the term "meaningful visitation" in stating that where the parent has offered meaningful visitation any objection to additional or specific visitation contrary to the parent's wishes will be honored and additional visitation denied.

Thus, the best strategy to obtain grandparent visitation is to show that the parent has denied all visitation, or has not offered "meaningful visitation".

Conclusion

Although the constitutional limitations on the statutory creation of grandparents’ visitation rights may diminish those rights, often pursuing a petition to establish grandparent visitation will allow for a negotiated agreement, and therefore result in some continued contact between grandparent and grandchild.

If litigation is necessary, grandparents will have to show that there is a pre-existing "deep and abiding relationship," between the child and the grandparent, that visitation with a grandparent is in the best interests of the child, and that they have not been offered any “meaningful visitation,” and then ask the court to order specific visitation.

To speak with an experienced Alameda County grandparent's rights attorney, contact Martin "Jamie" Elmer today at (510)-644-2411 to schedule a free constultation or fill out our online form.