Do Grandparents Have Visitation Rights in California?

Learn what judges consider when making decisions about grandparent visitation in California.

In many families, grandparents are heavily involved in their grandchildren's lives and may even play the role of parent in some households. However, after a separation or divorce, grandparents may wonder whether they can still visit their grandkids.

This article explains the visitation rights of grandparents in California. If you have additional questions about grandparent visitation in California after reading this article, you should consult a local family law attorney.

When Can Grandparents Ask for Visitation?

Parents can always choose to allow grandparents visitation with their children, without a court order. For various reasons, however, some parents stop allowing their children time with their grandparents. In these cases, the grandparents may be able to petition the court for visitation.

Courts in California won't accept a petition for grandparent visitation when the child's parents are still married, unless one of the following scenarios exist:

  • the parents are separated
  • one parent's whereabouts have been unknown for at least a month
  • one of the parents joins the grandparents in the request for grandparent visitation
  • the child doesn't live with either parent
  • the child has been adopted by a stepparent, or
  • one of the parents is incarcerated or involuntarily institutionalized.

If a grandparent has visitation based on one of the above scenarios, and those circumstances cease to exist, the parents can ask the court to terminate grandparent visitation. For example, if the parents are separated, but move back in with each other, they can request that grandparent visitation end.

How Courts Decide Whether to Grant Grandparents Visitation

Grandparents that file for visitation rights with their grandchildren must serve a copy of the petition on each of the child's parents, stepparents, and any other person who has physical custody of the child. Courts automatically send all grandparent visitation cases to mediation. (Learn how this mediation works in California, including how to get it for free.) If the parents and grandparents can't settle their matter in mediation, the mediator notifies the court, which then sets the case down for a hearing before a judge.

A judge deciding a grandparent's visitation case begins with the presumption that grandparent visitation shouldn't be allowed if both parents (or one parent with sole custody) agree that the grandparent shouldn't have visitation. It's the grandparent's burden to prove to the court that visitation is in the child's best interests.

When determining whether visitation is in a child's best interests, courts consider a host of factors, including each of the following:

  • the child's health, safety, and well being
  • and history of domestic abuse by anyone seeking custody or visitation
  • each person's use of drugs or alcohol, and
  • the nature and frequency of contact between the child and person seeking custody.

In grandparent visitation cases, judges must determine whether there is a preexisting relationship between the grandparent and grandchild such that it's in the child's best interest to continue the relationship. Courts also must balance parent's prerogative to deny the grandparent's visitation against the positives of the grandparent having visitation. If a child is 14 or older, the judge will also consider the child's opinion on grandparent visitation.

When a child's parent dies, the court can grant visitation to the deceased parent's children, siblings, parents, or grandparents if it's in the child's best interests. Judges consider the amount of contact between the child and the other family member when deciding whether to grant visitation for all family members except grandparents; grandparents need only show that it's in a child's best interests for them to win visitation.

When a court grants a grandparent visitation with a child, the judge may also order a parent or grandparent to pay child support for limited purposes, such as transportation, medical expenses, day care costs, or other necessities. For example, if a child must fly or take other transportation to reach the grandparent for visitation, the court may order the grandparent to pay the transportation costs directly to the child's parent.

Visitation Rights After Adoption

In California, if a child is adopted by someone other than a stepparent or grandparent, all visitation rights with the previous family automatically terminate. The child's adoption severs not only the relationship between a child and parent, but all of the parent's relatives as well. If a stepparent or another grandparent adopts the child, however, grandparent visitation may continue.

Also, if a court has removed a child from the parent's physical custody and placed the child in another environment, such as a children's home, the judge must also determine whether continued grandparent visitation is in the child's best interests. In these cases, courts don't automatically assume that grandparent visitation is against the child's best interests, regardless of the parents' views or desires.

Can Grandparents Win Custody of a Grandchild?

California courts can grant custody to the child's parents, or to any other person who may provide a good home for the child. Judges will first try to place the child with one or both parents, if a parent is fit to have custody. If neither parent is eligible to have custody, the court will try to grant custody to a person in the child's current residence, if it's a wholesome and stable environment.

Children whose parents are unable to care for a child often live with grandparents, and many California grandparents have legal custody of their grandchildren for this reason. If the child isn't currently living with either parent or in another stable home, a judge may grant legal custody to any other person who shows the ability to provide care and guidance for a child, including grandparents who don't currently have physical custody of the child.

If you have additional questions about grandparents' visitation rights, you should consult a California family law attorney.

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