Grandparents Rights in Family Law Cases
California has a Grandparents Rights statute. It says that the court can order visitation with minor grandchildren even if the parents object. The California Supreme Court upheld this law in Butler vs. Harris in 2004.
The U.S. Supreme Court, however, has said that there is a Constitutionally protected right to parental autonomy. So winning these cases, even after Butler, is very difficult. Unless a parent has been determined to be unfit, there is wide latitude given to their liberty.
There is also a presumption, which California has codified, that parents act in the best interest of their children. This presumption can be challenged in a specific case, but the burden of proof is on the grandparent to prove that the parents are not acting in a child’s best interest in denying grandparent visitation rather than on the parents to prove that they are.
The U.S. Supreme Court has specifically said that courts must give a “special weight” to a parent’s decision to deny grandparent’s visitation.
California law says that grandparent’s rights to visitation occur under three circumstances.
First, if a parent has died, the immediate relatives of the deceased can petition the court for visitation if they can show it is in the best interest of the child.
Second, if the parents are divorcing or otherwise have custody proceedings ongoing, the court can grant grandparents rights to visitation, again if it is in the best interest of the child.
And finally, if the parents are divorced or were never married and the custodial parent does not allow the grandparent’s rights, they can petition the court for visitation. The court must be in the child’s home state.
In such a case, the court must find that there is a preexisting bond between the grandparent and the child. The court must also balance the interest in the child having visitation with the grandparent against the parent’s rights to exercise their parental authority. When this is the case, there is a rebuttable presumption that visitation is not in the best interest of the child.
In any case related to grandparents rights, both the parents and the grandparents should seek legal representation.
I have helped many people through grandparents rights cases. If you’d like to talk to me about your case, call 877-369-5294.
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