Grandparent Visitation

Opa und Enkel am See

Family Code Section 3104 permits grandparents to seek visitation only if the parents are not married or are separated, or if other specified circumstances exist. The grandparents must show:

1. A pre-existing relationship between the grandparents and grandchild that has engendered a bond such that visitation is in the best interest of the child; and

2. The Court must balance the best interest of the child in having visitation with the grandparents with the rights of the parents to make decisions about their child.

In Lopez v Martinez (2000) the court recognized that the Legislature limited Family Code section 3104 by creating a rebuttable presumption against grandparent visitation if the child’s parents agree that the grandparent should not be granted visitation rights, or if the parent awarded sole custody objects to the grandparent visitation.

In Marriage of Harris (2004), the Court of Appeal found that the trial court erred in not applying the rebuttable presumption against grandparent visitation where the parent with sole legal and physical custody of the child objected to grandparent visitation. In Harris, mother was granted sole legal and sole physical custody of the child. By stipulation, the paternal grandparents were joined as parties and later granted visitation rights in Maryland, where mother was living at the time. Mother later moved to Utah without notifying the grandparents, who had to hire a private investigator to locate her. The court found mother in contempt of the court order for grandparent visitation. Mother subsequently remarried and moved to California where she again objected to grandparent visitation on the grounds that it was disruptive to the child’s integration into her new family. The court found that grandparent’s visitation was in the child’s best interest and ordered that the mother allow the child to travel alone on airline flights to visit the paternal grandparents. The Court of Appeal revered and remanded the matter to the Trial Court to reconsider grandparent visitation in light of the rebuttable presumption that grandparent visitation was not in the child’s best interest.

In short, a court order for grandparent visitation is difficult to obtain if the parents both object, or the parent with sole custody objects to the visitation.

If you have other questions about divorce or family law beyond grandparent visitation, please contact our office to schedule a consultation. The Law Office of Bawden & Kochis also handles legal issues regarding adoption, annulment, mediation, child custody, child and spousal support, community property, visitation, separation, and domestic violence as well as pre-marital and post-marital agreements. Telephone (909)792-0222, or email Bawden & Kochis at [email protected]

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