GRANDPARENT/STEP-PARENT VISITATION

Current law provides three mechanisms by which grandparents may obtain court-ordered visitation with their grandchildren. Each applies in different situations, although they all have some overlapping provisions.

Grandparents are allowed to request visitation with their grandchildren during the parents' marriage. The grandparents must give notice of their action by personal service to the child's parents, any step-parent and anyone who has custody of the child. The court can grant visitation rights to the grandparents in these matters if (1) the visitation order is in the child's best interest; (2) there is a pre-existing bond between the child and the grandparents that justifies visitation; and (3) the child's interest in visitation outweighs the parents' right to exercise parental authority.

The court may only order grandparent visitation during the parents' marriage if one or more of the following circumstances exist: (1) the parents are living apart; (2) one parent is absent and his or her whereabouts are unknown; (3) one parent joins in the grandparents' petition; or (4) the child does not live with either parent. If the court grants visitation to a grandparent, it must terminate the order once none of these circumstances exist.

California law provides a rebuttable presumption that grandparent visitation is not in a child's best interest if both parents agree that the visitation should not be ordered. In addition, California law also provides a rebuttable presumption that grandparent visitation is not in a child's best interest if the parent who has sole legal and physical custody of the child objects, or if the parent with whom the child resides (in the absence of a custody order) objects.

Once parents separate, California law authorizes reasonable grandparent visitation awards in any custody proceeding. A grandparent who is seeking visitation must give notice of the petition by certified mail to both parents and/or to step-parents and anyone who has physical custody of the child. There is a rebuttable presumption that grandparent visitation is not in a child's best interest if both parents agree that the visitation should not be ordered.

The third mechanism by which grandparents can seek visitation rights is when one parent of the minor child is deceased. The parents, siblings, grandparents or other children of a deceased person can request visitation with the deceased's children. In these cases, the visitation determination will be based on the child's best interest and, if the requesting party is not the child's grandparent, on the amount of pre-petition contact between the applicant and the child.

In recent Appellate Court decisions this grandparent statute (when a parent is deceased) has been held to be unconstitutional when applied to a surviving parent who is neither unfit nor opposed to occasional visitation. Those decisions relied heavily on the U.S. Supreme Court decision in Troxel v. Granville (2000) 530 US 57, in which a U.S. Supreme Court majority held that a Washington State statute, which authorized the trial court to award visitation rights to any person if it would be in the child's best interests, was unconstitutionally over broad and interfered with the fundamental liberty interest that a parent has in making decisions about his or her child's care, custody and control.

Since the United States Supreme Court decision in Troxel v. Granville, grandparents' ability to obtain visitation rights to their grandchildren has become very difficult, if not almost impossible. Most states, as in California, now hold true to the concept that parents have a fundamental liberty to make decisions about their children's care, custody and control. Therefore, if a parent is a fit parent and allows at least some contact, albeit even a minor one, with the grandparents, the grandparents will have a very difficult time convincing trial courts to grant them formal visitation rights to their grandchildren.

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