More often than not, grandparents play an important role in their grandchildren's lives. Sometimes, they even help raise the kids. Considering that special relationship, you'd think grandparents would have an automatic right to spend time with their grandchildren. But that's not the case in California (or in other states). If one or both of your grandchild's parents have limited or completely cut off your access to the child, you should know that California law sets limits on when you may go to court to get help—and what you'll have to prove to win visitation rights.
California has three separate laws that allow grandparents to request visitation rights with their grandchildren under various circumstances, including when the parents are getting divorced, after they've divorced or separated, and when one parent has died. The rules for granting these requests are somewhat different, depending on the law that applies.
California judges may also grant visitation rights to grandparents during a parent's military deployment, but only when the servicemember (not the grandparent) requests it. (Cal. Fam. Code § 3047 (2023).)
Grandparents may file a petition requesting visitation rights as part of the parents' divorce, legal separation, annulment, or other custody case in California (such as when the parents were never married).
In these cases, a judge may grant a grandparent reasonable visitation if it would be in the child's best interests. But the judge must start out by presuming that it would not be best for the child if both parents agree that the visitation request should be denied. That presumption is rebuttable, meaning that the grandparents may try to overcome it with convincing proof that under the specific circumstances, the child's best interests require granting them visitation over the parents' objection. (Cal. Fam. Code § 3103 (2023).)
Under another California law, grandparents may request visitation rights when there's no ongoing case involving custody of the child, but only if one of the following is true:
Before granting the request, the judge must:
In these cases, there's a rebuttable presumption that grandparent visitation wouldn't be in the child's best interests over the objection of:
Even after a judge has awarded a grandparent visitation rights, the parent or parents may have those rights ended if one of the qualifying circumstances (listed above) no longer exists. For instance, when a child who was living with another relative is now back home with a parent, or when a parent is released from jail, the judge must grant either parent's request to terminate the grandparent's visitation rights. (Cal. Fam. Code § 3104 (2023).)
Even if the parents have an ongoing legal dispute about custody, grandparents must seek visitation under this statute (rather than section 3103) once a court has issued custody orders as part of the parents' final divorce judgment. (In re Marriage of Harris, 34 Cal.4th 210 (Cal. 2010).)
Yet another California law addresses visitation requests by grandparents (and certain other close relatives) when one of a child's parents have died—but the state's courts have limited its application. Under that law, a judge may grant reasonable visitation to the deceased parent's children, siblings, parents, and grandparents as long as it would be in the child's best interests—after considering the level of personal contact the relative already had with the child . (Cal. Fam. Code § 3102 (2023).)
The statute doesn't include any wording about a presumption (such as the ones discussed above) in favor of the surviving parent's objection to granting the nonparent's visitation request. But California courts have held that the law unconstitutionally infringes on the fundamental interests of fit parents to make decisions about their children's lives, including who they'll spend time with. So even in these cases, judges should apply the presumption that a fit, surviving parents is acting in their kids' best interests. The judges shouldn't substitute their own beliefs for the parent's by assuming that visiting the grandparent would be in the child's best interests. (Zasueta v. Zasueta, 102 Cal.App.4th 1242 (Cal. Ct. App. 2002).)
In most cases, it won't be easy for grandparents to prove that granting them visitation rights would be best for the children, despite the parents' objection. This is especially true when the parents have voluntarily offered the grandparents some reasonable amount of time with the kids but are fighting the request for court-ordered visitation. The grandparents will need clear and convincing evidence to overcome the presumption that parents know what's best for their kids.
Still, that doesn't mean it's impossible for grandparents to win visitation rights. For example:
Note that if the child has a birth parent who's not part of the case where the grandparents are requesting visitation rights, the judge may not order visitation that would conflict with that parent's custody or visitation rights. (Cal. Fam. Code §§ 3103(e) and 3104(g) (2023).)
When a grandparent has court-ordered visitation rights, it could be more difficult to exercise those rights if the child moves a significant distance away. When a judge is deciding whether to allow a parent to relocate with the child, the judge may consider the effect of that move on a grandparent's visitation—but it may not be the main reason for allowing or denying the relocation. (Cal. Fam. Code §§ 3103(f) and 3104(h) (2023).)
Under California's child support guidelines, the formula for calculating support takes into account the percentage of time parents have with their kids. When judges have ordered grandparent visitation, they may (but don't have to) do either or both of the following, depending on the circumstances:
(Cal. Fam. Code §§ 3103(g)(2) and 3104(i)(2) (2023).)
California law allows judges to modify any orders affecting child custody or visitation—including grandparent visitation—but only if there's been a substantial change in circumstances, and the proposed modification would be in the child's best interests.
If a judge has ordered grandparent visitation after a parent's death, those visitation rights will automatically end when the child is adopted by anyone other than a stepparent or another grandparent. (Cal. Fam. Code § 3102(c) (2023).)
It's not easy for a grandparent to get custody of a child while at least one parent is alive. When the authorities have taken children from their parents' homes because of abuse or neglect, the court may place the children with their grandparents or other relatives. But the parents will be given the services (and time) to correct the problems and reunite with their kids before the court may terminate their parental rights. (Cal. Fam. Code §§ 7820 and following (2023).)
California law sets an order of preference for custody awards. Naturally, either or both parents are at the top of the list. But if a judge has found that neither parent is fit—and the child is at risk—next in line for custody preference are:
Grandparents could fit into either of those groups, depending on the circumstances. (Cal. Fam. Code § 3040(a) (2023).)
It's worth pointing out that parents may transfer custody of a child to a grandparent for any number of reasons, whether through an informal or formal guardianship. Also, grandparents may seek guardianship on their own, such as when the parent can't care for the child because of extended hospitalization, addiction, or other serious problems.
While it's possible for grandparents to get court-ordered visitation rights over the parents' objections, it isn't a sure thing. And if you get embroiled in a lengthy court battle over the dispute, it could be quite costly, both financially and emotionally. So it's in everyone's best interest to try to resolve disagreements about visitation without getting the courts involved, either on your own or with the help of mediation.
If that doesn't work, the California Courts Self-Help Guide provides information on how to file a petition for grandparent visitation, along with some of the forms you'll need. Once you've filed the petition, you'll be required to participate in mediation under California law unless you and the parents have already worked out an agreement.
You should understand that it can be hard for lay people to navigate the procedures and rules in the court system. You'll have to know how to gather and present the right kind of evidence needed to convince a judge that granting grandparent visitation would be in the best interests of the children or child, despite the legal presumption in favor of the parents' decisions. If at all possible, you'd be wise to speak with a knowledgeable family law attorney who can evaluate your situation, advise you about the best path forward, and represent you in court if it comes to that.