The current rate of divorce, the escalating rate of domestic violence, alcoholism and substance abuse in our society has done much to diminish the traditional family. Not only does the timeshare with the minor children become a major point of contention between the parents, but it can be for grandparents as well. Without proactive measures, they can easily become alienated from their grandchildren after other circumstances also, such as the death of a parent. But grandparents have rights too, right?

Yes and No. In 2001 a California Court of Appeals ruled the California statute providing grandparent visitation unconstitutional. But sometimes grandparents are granted visitation by the court. Because there are many issues to be aware of and because grandparent rights are not automatic, legal research or advice is needed before proceeding with any action on your own to discuss what specific course of legal action can be taken, if any.

California Family Code Section 3103 defines the specific proceedings in which grandparents may be entitled to visitation and Section 3104 defines the specific prerequisites before visitation will be granted. (See language below).

Basically, the court needs to see that either a parent is deceased, the child’s parents are divorced or separated, one parent’s whereabouts are unknown, or the child is not residing with either parent (as in the case of a guardianship or adoption). After determining that visitation is in the child’s best interest, it should be proven that the grandparents already had a loving bond with the grandchild and that any potential grandparent visitation wouldn’t conflict with the parents’ rights, which come first.

3103. (a) Notwithstanding any other provision of law, in a proceeding described in Section 3021, the court may grant reasonable visitation to a grandparent of a minor child of a party to the proceeding if the court determines that visitation by the grandparent is in the best interest of the child.
(b) 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 visitation by the grandparent be denied.
(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 certified mail, return receipt requested, postage prepaid, to the person’s last known address, or to the attorneys of record of the parties to the proceeding.
(d) 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 child’s parents agree that the grandparent should not be granted visitation rights.
(e) 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.
(f) 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.
(g) 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.
(h) As used in this section, “birth parent” means “birth parent” as defined in Section 8512.
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.
(5) The child has been adopted by a stepparent.
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 bestinterest of a minor child if the parent who has been awarded sole legal and physical custody of the child in another proceeding, or the parent 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.