A court has the power to grant visitation privileges to a grandparent if one of the following conditions exist: (1) Parent is Deceased; (2) Parents are Divorced or Separated; (3) or there is clear evidence it would be in the best interest for a child to maintain a relationship with another person.
I have been an advocate of grandparents being a part of children’s lives for many years. I was raised in part by my grandfather during my youth and into adulthood and I learned many lessons about life, the value of family and having a continuous relationship with family. It is important for a child to know their historical background as it teaches them who they really are and why they are important to the world and encourages them to grow beyond what their teachers can teach them and their friends can offer. They learn they are unique and important and valuable to society.
The United States Supreme Court case of Troxel v. Granville, decided in 2000, dealt a serious blow to the proponents of Grandparents’ Rights, whereas the court held “fit parents are presumed to act in their children’s best interest,” meaning it is up to the parents to allow visitation.
The court believed that a 'fit parent(s)" are presumed to act in their children's best interest, even when the parents cut off contact with grandparent(s) and other family members. However, Troxel v. Granville does not offer a clear standard and it was far from an unanimous decision as six separate opinions were offered in the case. The case was split with three majority judges saying yes and three minority judges saying nay. It fell on one judge and the case held that the natural parents have the right but, it did not clarify 'fit parent" nor "best interest" other than it is “presumed.”
In California the courts have codified law concerning visitation rights of grandparents in Family Code Section 3102, but once again “best interest" is the standard of review.
Family Code Section 3102 (a) If either parent of an un-emancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the child’s minority upon a finding that the visitation would be in the best interest of the minor. (b) In granting visitation pursuant to this section to a person other than a grandparent of the child, the court shall consider the amount of personal contact between the person and the child before the application for the visitation order. (c) This section does not apply if the child has been adopted by a person other than a stepparent or grandparent of the child. Any visitation rights granted pursuant to this section before the adoption of the child automatically terminate if the child is adopted by a person other than a stepparent or grandparent of the child.
The Court must consider the following: (1) Pre-existing relationship and bond has been established; (2) Balancing Grandparents visitation against the rights of the parents to exercise their parental authority.
WHERE WE HAVE a parent of an un-emancipated minor of a deceased parent the court must allow the deceased parent’s family to stand-in place of the deceased parent.
The standard of review is “best interest" of the minor.
Family Code Section 3040 provides in part (3) To any person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.
Health, Safety, Welfare. Parent most willing to share custody. Preexisting Relationship and Stability
Best Interest must be the court’s primary considerations and not necessarily the other parent’s wishes as that parent may be prejudiced by their own feelings toward the person(s) wishing to be part of the child’s life.Each Case is Different
Many states have challenged Troxel v. Granville and many more have rewritten statues and amended such statues to pass the federal law challenge and pass federal constitutionality tests. In come states, suits for visitation may be filed only if there has been a divorce, death or other disruptive circumstance in the family. In our state the court will require “clear and convincing” evidence that visitation is in fact in the child's best interest.
I CAN HELP YOU obtain reasonable visitation with your grandchild(ren) depending on the circumstances of your case. Please call me at (951) 530-8655 or (909) 481-3626 to schedule a time for a consultation.