Understanding Grandparent Visitation Laws

The California Supreme Court has granted review of Butler v. Harris, where the Court of Appeals held that grandparents could obtain visitation over the objection of a fit parent if they could prove by clear and convincing evidence that the parent’s refusal to allow visitation would be detrimental to the child. This case has the potential to reshape the balance between grandparents’ visitation requests and parents’ constitutional rights. Updates on this case will be closely monitored.

Family Structures and Grandparent Visitation

The typical vision brought to mind when hearing familiar lyrics about family gatherings is of an intact household—mom, dad, and children traveling to visit grandparents for holiday dinners. However, children of divorce may not share such experiences. They may divide time between multiple sets of grandparents, or in some cases, may not see grandparents at all unless legal action is pursued.

This reality underscores why states have enacted statutes to address when and how grandparents may obtain visitation with grandchildren, especially when family structures are fractured due to divorce, remarriage, separation, or parental absence.

Statutory Framework Across the United States

All states have statutes that authorize courts to award visitation to grandparents under specific conditions. The scope of these laws varies significantly:

• Some states restrict visitation rights to situations where the family is not intact.
• Others, such as Virginia, extend rights even into intact families under limited circumstances.
• Many laws were rewritten after the U.S. Supreme Court’s landmark decision in Troxel v. Granville (2000), which struck down a Washington statute that gave courts broad discretion to award visitation over a parent’s objection. The Court emphasized that parents have a fundamental liberty interest in the care, custody, and control of their children under the Due Process Clause of the Fourteenth Amendment.

Grandparent Visitation in California

Statutory Provisions

California permits grandparents to request visitation in the following ways:

• During custody proceedings: A grandparent may be joined as a party to an ongoing custody case under Family Code § 3101(a).
• Through an independent petition: A grandparent may initiate a standalone action seeking visitation under Family Code § 3104.

Prerequisites

California requires two findings before granting visitation rights:

1. A preexisting relationship and bond between the grandparent and grandchild.
2. Visitation must be in the best interests of the child.

If these conditions are met, courts must balance the child’s interest in maintaining that relationship against the parents’ constitutional right to make decisions regarding child-rearing. Family Code § 3103(a)(2) codifies this balancing test.

Limitations

• Grandparent visitation orders cannot interfere with the visitation rights of a nonparty birth parent (Family Code § 3104(g)).
• Grandparents may not petition if the family is intact and both parents oppose visitation.
• Exceptions exist when:
  • Parents live separately on a permanent basis (§ 3104(b)(1)).
  • A parent has been absent for more than one month without their whereabouts being known (§ 3104(b)(2)).
  • One parent joins in the grandparent petition (§ 3104(b)(3)).
  • The child does not live with either parent (§ 3104(b)(4)).

How the Process Works in Practice

Filing a Petition

To begin, a grandparent files a petition in the family court of the child’s county of residence. The petition must outline the relationship with the child, the reasons for seeking visitation, and evidence of an existing bond. Parents are formally served, and the court may order mediation before holding a hearing.

Evidentiary Burden

Courts typically require grandparents to prove:

• An established relationship that benefits the child’s emotional well-being.
• That denial of visitation would be harmful to the child.
• That visitation would not unduly interfere with parental authority.

The burden is significant, particularly after Troxel v. Granville, which raised the constitutional threshold for overriding a fit parent’s decisions.

Enforcement

If a visitation order is granted, it has the same weight as a custody order. Violations can result in contempt proceedings, fines, or modifications of the parenting plan.

Conditional and Special Circumstances

Death or Incarceration of a Parent

If one parent is deceased or incarcerated, courts are more likely to consider petitions from grandparents as a way to preserve continuity in the child’s life.

Adoption or Remarriage

Grandparents’ rights may be limited after adoption, particularly by non-relatives, unless the adoption decree preserves those rights. When step-parents adopt a child, courts sometimes allow grandparent visitation to continue if in the child’s best interests.

Child’s Preference

Older children may express preferences regarding visitation. Courts can consider these views depending on the child’s age and maturity.

Comparing California With Other States

Virginia

Virginia’s broader statute permits grandparents to seek visitation even in intact families. The Virginia Supreme Court in Williams v. Williams upheld the law, concluding that it would be constitutional if visitation were ordered only when harm to the child would result from denial.

Illinois

Illinois law restricts visitation to non-intact families. In West v. West (1998) 689 N.E.2d 1215, the Illinois Supreme Court upheld this restriction, rejecting an equal protection challenge.

Other States

• Texas allows grandparent visitation under limited conditions, such as parental death, incarceration, or proven unfitness.
• New York provides a statutory right for grandparents to petition if one or both parents are deceased, or in circumstances where equity requires intervention.
• Florida is notably restrictive, with very limited circumstances for grandparent petitions, reflecting the state’s strong parental rights doctrine.

Policy Debates and Social Considerations

The debate over grandparents’ rights reflects a tension between:

• Preserving children’s stability and extended family ties.
• Protecting the constitutional autonomy of parents in raising their children.

Social science research suggests that children often benefit from relationships with grandparents, particularly in single-parent households. However, courts remain cautious about undermining parental authority without compelling evidence of harm.

Frequently Asked Questions

Can grandparents force visitation in California?

Not in intact families. Visitation is only possible if statutory exceptions apply, or if the parents are divorced, separated, or one parent is absent.

What is the difference between custody and visitation?

Custody involves decision-making and residential rights, while visitation provides a scheduled time with the child without altering parental authority.

How difficult is it for grandparents to win visitation rights?

It can be challenging. Grandparents must prove both an existing bond and that denying their visitation would harm the child, while overcoming the presumption that parents act in the child’s best interest.

Do grandparents have rights after adoption?

In most cases, adoption severes grandparents’ rights, unless specifically preserved in the adoption order or if the adoption is by a step-parent.

Get Legal Help

Navigating grandparents’ visitation rights requires understanding complex statutes, constitutional principles, and case law. Each situation depends on unique facts: the child’s relationship with the grandparent, the parents’ wishes, and the court’s view of the child’s best interests.

If you are a parent or grandparent facing a visitation dispute, professional legal advice can help you protect your family’s future. The experienced family law attorneys at Reape Rickett have decades of experience handling complex custody and visitation matters throughout California. Our team is committed to guiding clients through every step of the process, from filing petitions to responding to court actions, while always keeping the child’s best interests at the center.

To take the first step toward clarity and resolution, contact Reape Rickett today to schedule a confidential consultation. With knowledgeable representation and a compassionate approach, we can help you safeguard your parental or grandparental rights and work toward the best possible outcome for your family.