“If either parent of an unemancipated 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 child.” [Family Code “FC” 3102 (a)]
As you know, “best interest of a minor child” is the seminal phrase used and followed in determining and ensuring a child’s welfare is protected. It is a case-by-case analysis supported case laws and relevant facts of the case. Therefore, critical analysis of the law with the specific facts of the case is of utmost importance.
Presenting it to the court (both in writing and orally) requires a focused understanding of the law. There are statutory conditions the court follows, including but not limited to: FC 3102 (b) states, “in granting visitation pursuant to FC 3102 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.”
Section 3104 (a) specially addresses the rights of the grandparents to visitation. The court is given authority to allow grandparents to court ordered visitation if it determines both of the following: (1) find that 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 grandparents against the right of the parents to exercise their parental authority.
However, Section 3104 (b) states in full, “A petition for grandparent visitation shall 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 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 (6) one of the parents is incarcerated or involuntarily institutionalized.”
At any time that a change of circumstances occurs such that none of the above exist, the parent or parents may move the court to terminate grandparental visitation and the court shall grant the termination.
Keep in mind as well that there is a rebuttable presumption that the visitation of a grandparent is not in the best interest of a minor child if the natural parent or adoptive parents agree that the grandparent should not be granted visitation rights. Moreover, there is a rebuttable presumption that affects the burden of proof that visitation rights should be awarded to the grandparents, if the parent who has sole legal and physical custody of the child objects to the visitation.
If a protective order (Section 6218) has been directed to the grandparents during the pendency of the proceeding, the court shall consider this, and requires that any visitation by that grandparent be denied.
As for child support, the court in its discretion, may allocate the percentage of grandparental visits between the parents for the purposes of support. The court may also order “support” for any costs related to the visitation such as transportation costs and basic expenses for necessities.
Grandparent visitation like all custody issues are factually and legally complex and requires substantial expertise. You can reach me directly at 310-601-7144 or email me at [email protected]. For more articles, visit my website at attycastaneda.com.
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