A divorce affects many members of the family, not just the couple and their children. Other family members may feel that they have a right to visit and speak with children after a divorce, regardless of who obtained custody. Grandparents who want to secure visitation rights with grandchildren have several resources available to them in the state of California.
How Do the Courts Decide Visitation Rights?
During a divorce or separation involving children, the courts must assign custody and visitation rights. The law mandates that judges must assign custody and visitation rights according to the best interests of the child. The courts will consider the age of the child, the emotional ties between a child and his or her parents, the ability of the parents to care for the child, and the child’s ties to his or her home and community. There are four types of visitation orders:
- According to a schedule. Parents can come up with their own agreed-upon visitation schedule for the courts to approve. This is the best-case scenario, as it makes the case easier and less stressful for the child. The visitation schedule will detail the dates and times the child will be with each parent, including holidays and special occasions.
- Reasonable visitation. These visitation orders are open-ended and do not have details as to when a child will be with each parent. The courts leave the details up to the parents, as long as parents can work it out between themselves and be flexible and communicative about the child’s schedule.
- Supervised visitation. If the courts question the safety and wellbeing of the child under a parent’s care, they can order supervised visitation rights. Another adult, parent, or professional agency must supervise these visits until the court changes the visitation terms.
- No visitation. In cases where the child would be in physical or emotional danger around a parent even with supervision, the courts will make a no visitation order. The courts will not allow the parent any contact with the child.
In the event that a grandparent asks the court for visitation rights, the courts will look at the same elements as with parents. However, there are other stipulations that must be present as well.
Asking the Courts for Visitation Rights
As a grandparent, it is within your rights under California law to ask the courts for visitation rights to see your grandchildren. To begin the petition process, contact a family law attorney and explain your situation. The attorney will be able to complete and file the appropriate paperwork to petition the courts for visitation rights. If there is already an open case between the grandchild’s parents, such as a divorce case, you may be able to ask for visitation under an existing case. If not, you must file a new petition from scratch.
In general, a grandparent cannot request visitation rights if the parents of the children are still married. However, there are a few exceptions, such as if the parents are living separately, if their whereabouts are unknown, if the child does not live with either parent, or if a stepparent has adopted the grandchild.
The courts look for two main elements in deciding whether or not to grant grandparents visitation rights. First, the courts must find that a relationship existed between the grandparents and the grandchild that “engendered a bond.” This means that continuing the relationship between the grandparents and grandchild is in the child’s best interest. Second, the courts must balance the rights of the parents to make decisions about their children with the best interest of the child to visit his or her grandparents.
If possible, it is often best for grandparents to resolve visitation issues with parents outside of court. Mediation is an alternative to going to court that allows you to safely and openly discuss your needs and concerns regarding your grandchildren.
