Grandparent Visitation Rights and Non-Parent Visitation Rights in San Diego

Child Custody Experts – Private Consultation – Grandparent and Non-Parent Visitation Rights Discussed

Grandparent Visitation Rights

The seminal case concerning grandparent visitation is Troxel v. Granville.  The full text of that case can be found here.  In Troxel, a grandmother in Washington state petitioned the court to allow her to have extended visitation with her grandchild.  The child’s mother stated that she was open to some visits between the grandmother and child, but was not agreeable to any extended visitation schedule.  The case was taken all the way to the United States Supreme Court, and the High Court held for the parent over the grandmother.

The Court’s perspective on grandparent visitation is that a fit parent’s discretion should be given “special weight” as to how they want to parent their child.  There is a Constitutional right to parent a child.  Specifically, Troxel states that a parent’s fundamental right to parent their child is at issue when grandparents try to gain court ordered visitation.  As such, there is a presumption that a fit parent acts in his or her children’s best interest and thus should not be forced to cede court ordered visitation to non-parents.  That being said, it is just a presumption.  Thus, if the grandparents can somehow rebut that presumption, they could gain some amount of court-ordered visitation rights.

Under California Family Code 3021 and 3103, the family courts in California and San Diego are permitted to allow grandparent visitation in certain instances.  Family Code 3103(a) states that the court may enter such an order if it would be in the best interests of the child.  However, Section 3103(d) follows the Troxel advisement and states that it is presumably not in the best interests of a child to have grandparent visitation when the child’s parents agree that there should not be such visitation.

There are several requirements for a petition under these sections.  First, if the parents are married and living together a petition under this section will be summarily dismissed.  These grandparent visitation cases are usually reserved for situations where parents have separated and are living apart.  Next, pursuant to Fam. Code 3104(a), the court must find:

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 of 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.

When all parties agree that the children should spend time with their grandparents but do not believe that court-mandated visitation is the best route, parents should  establish a voluntary routine for visitation with the grandparents.  If a parent can show the court that voluntary visitation has been allowed to occur, the court should not overstep a parent’s fundamental right to parent their children without interference from an outside party.  Effectively, a parent can defuse a grandparent’s request by voluntarily offering visitation before the courts get involved.  If grandparents are already getting regular time with the grandchildren, the court will be much less inclined to award grandparent visitation and strip away a portion of a fit parent’s parental rights.

Additionally, there is a carve-out in Family Code 3102 that says that the court may grant visitation to relatives, in particular after the death of one parent.  However, as stated in Kyle O. v. Donald R., that decision is discretionary.  Simply because one parent dies it does not immediately or mandatorily indicate that the surviving parent’s rights should be trampled over.

Non-Parent Visitation

The Family Code permits “non-parents” to petition the court for visitation with a child.  A petitioner under these sections may include a grandparent or another other person.

Family Code 3041 provides in full:

(a) Before making an order granting custody to a person or persons other than a parent, over the objection of a parent, the court shall make a finding that granting custody to a parent would be detrimental to the child and that granting custody to the nonparent is required to serve the best interest of the child. Allegations that parental custody would be detrimental to the child, other than a statement of that ultimate fact, shall not appear in the pleadings. The court may, in its discretion, exclude the public from the hearing
on this issue.
(b) Subject to subdivision (d), a finding that parental custody would be detrimental to the child shall be supported by clear and convincing evidence.
(c) As used in this section, “detriment to the child” includes the harm of removal from a stable placement of a child with a person who
has assumed, on a day-to-day basis, the role of his or her parent, fulfilling both the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time. A finding of detriment does not require any finding of unfitness of the parents.
(d) Notwithstanding subdivision (b), if the court finds by a preponderance of the evidence that the person to whom custody may be
given is a person described in subdivision (c), this finding shall constitute a finding that the custody is in the best interest of the
child and that parental custody would be detrimental to the child absent a showing by a preponderance of the evidence to the contrary.
(e) Notwithstanding subdivisions (a) to (d), inclusive, if the child is an Indian child, when an allegation is made that parental
custody would be detrimental to the child, before making an order granting custody to a person or persons other than a parent, over the
objection of a parent, the court shall apply the evidentiary standards described in subdivisions (d), (e), and (f) of Section 1912
of the Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) and Sections 224.6 and 361.7 of the Welfare and Institutions Code and the
placement preferences and standards set out in Section 361.31 of the Welfare and Institutions Code and Section 1922 of the Indian Child
Welfare Act (25 U.S.C. Sec. 1901 et seq.).

Notably, Family Code Section 3041.5 states that the court is permitted to order the drug testing of anyone seeking custody under section 3041.

In considering whether to file a petition under the “grandparent” visitation statutes or “non-parent” custody statutes, it is important to consult a qualified attorney to plan ahead.  The burden of proof required for a “non-parent” to obtain custody orders is clear and convincing evidence, which is a very high standard.

For further information regarding grandparent visitation requests, contact our office.  You may also contact us and ask to speak with our specialist in grandparent and non-parent visitation, Kyle Siems.  Kyle has significant experience in dealing with these cases and would be happy to speak to you about your situation.