Grandparents rights

[LeslieM6257]

I live in California and was wondering if there is such a law as grandparents rights. My son has a little boy age 5 and never married the mother of his son. My son is now in the Army (Germany). He pays child support through his Army check each month (not court ordered). I live a few miles away from my grandson and have spent many, many good times with him, that is when his mother is not mad at anyone and lets me see him. Right now, she likes being in "control" and will call me when I can see him, if ever! Has anyone out there ever gone through this type of scenario? Any suggestions?

 

[Michael Wechsler]

Grandparents' rights is one of the hottest family law topics in the country today. In general, grandparents do not have the legal "standing" -- the right to be a party -- to sue for visitation rights. In many states the "best interest of the child" standard applies and grandparents may need to show a preexisting relationship or significant attempts to have a relationship with the grandchild.

California may be different as I have been made aware of a few cases such as Butler v. Harris which apparently held that grandparents could assert visitation rights over objections of parents if the refusal to allow visitation would be detrimental to the children.

Additionally, there is also Lopez v. Martinez, 2000 Daily Journal D.A.R. 12953,

The mother lived with her parents, who cared for the child and after the mother moved out, she refused her parents' desire for contact with her son. The grandparents petitioned under California Family Code Section 3104 which provides standing for grandparents to petition the court for visitation and the court granted the petition. However the appellate court reversed the decision because circumstances changed where the boy had two legal parents (step-father who adopted the child and the mother) and once this occurs, the parents can reject the grandparents' request for visitation unless the grandparents can rebut a presumption that the parents know what is best for the child in that the grandparents' visitation would be in the best interest of the child and without it there could be harm.

It seems as though you might be able to use the California Grandparent's Law to your advantage.

 

[Michael Wechsler]

3104.

(a) 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.

(b) A petition for visitation under this section may not be filed while the natural or adoptive parents are married, unless one or more of the following circumstances exist:

(1) The parents are currently living separately and apart on a permanent or indefinite basis.
(2) One of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse.
(3) One of the parents joins in the petition with the grandparents.
(4) The child is not residing with either parent. At any time that a change of circumstances occurs such that none of these circumstances exist, the parent or parents may move the court to terminate grandparental visitation and the court shall grant the termination.

(c) The petitioner shall give notice of the petition to each of the parents of the child, any stepparent, and any person who has physical custody of the child, by personal service pursuant to Section 415.10 of the Code of Civil Procedure.

(d) If a protective order as defined in Section 6218 has been directed to the grandparent during the pendency of the proceeding, the court shall consider whether the best interest of the child requires that any visitation by that grandparent should be denied.

(e) There is a rebuttable presumption that the visitation of a grandparent is not in the best interest of a minor child if the natural or adoptive parents agree that the grandparent should not be granted visitation rights.

(f) There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the parent who has been awarded sole legal and physical custody of the child in another proceeding or with whom the child resides if there is currently no operative custody order objects to visitation by the grandparent.

(g) Visitation rights may not be ordered under this section if that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding.

(h) Visitation ordered pursuant to this section shall not create a basis for or against a change of residence of the child, but shall be one of the factors for the court to consider in ordering a change of residence.

(i) When a court orders grandparental visitation pursuant to this section, the court in its discretion may, based upon the relevant circumstances of the case:

(1) Allocate the percentage of grandparental visitation between the parents for purposes of the calculation of child support pursuant to the statewide uniform guideline (Article 2 (commencing with Section 4050) of Chapter 2 of Part 2 of Division 9).
(2) Notwithstanding Sections 3930 and 3951, order a parent or grandparent to pay to the other, an amount for the support of the child or grandchild. For purposes of this paragraph, "support" means costs related to visitation such as any of the following:

(A) Transportation.
(B) Provision of basic expenses for the child or grandchild, such as medical expenses, day care costs, and other necessities.

(j) As used in this section, "birth parent" means "birth parent" as defined in Section 8512.