Do Grandparents Have Rights to Visitation With A Grandchild?
Unfortunately, a dispute may arise between a child’s parents and grandparents, to the point where a parent may refuse the grandparent to see their child.
In California, courts have the ability to order visitation for a grandparent. Parents have constitutional due process rights to make decisions about who, how and when their children should see family members; however, this right is not absolute. Courts must give “special weight” to parents’ decisions regarding grandparent visitation, and the burden is placed on the grandparent seeking visitation to show why the grandchild has a special interest to visit with him or her.
To petition for visitation, a grandparent must satisfy the two-prong test under Family Code section 3104(a), which states:
On petition to the court by a grandparent of a minor child, the court may grant reasonable visitation rights to the grandparent if the court does both the following:
(1) Finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child.
(2) Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.
First, the grandparent must show that there was a preexisting relationship and bond between the grandparent and grandchild such that granting visitation rights would serve the child’s best interests. For example, the grandparent could show that he or she lived with the grandchild for a period of time or cared for the grandchild on a regular basis. Additionally, the grandparent could demonstrate that he or she nurtured the relationship and strengthened the bond through visits, text messages, phone calls, video calls, letters, sent gifts, or any other form of contact with the grandchild.
Second, the grandparent has the burden of showing that the child’s interest in grandparent visitation outweighs the parents’ right to exclude the grandparent. The court may look to the parents for an explanation as to why they want to prevent the grandparent from visiting with their child. For instance, whether the grandparent commits illegal activities around the child, has any history of domestic abuse, or has ever harmed the child. Perhaps the parent just dislikes the grandparent. The court would also weigh all the factors with the effect of allowing or denying visitation with the child.
The right to grandparent visitation is not absolute; however where a genuine, beneficial bond exists between grandparent and grandchild with minimal detriment to the child, grandparent visitation will likely be granted. The court will exercise discretion in awarding visitation based on the specific facts of each case and will always consider the child’s best interests.
By: Vanessa M. Freitas, Certified Law Clerk
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