Grandparent Visitation

IMPORTANT NOTICE.

The California Supreme Court has granted review of the case Butler v. Harris where the Court of Appeal 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. Look for updates on the case at this site.

The typical vision brought to mind when hearing these lyrics is of an intact family, mom, dad and children, singing on their way to grandmothers for holiday dinner. Children of divorce may not have such traditional memories. Perhaps they are trotted off to visit both sets of grandparents, or even to a third set of grandparents if mom or dad has remarried. Perhaps they do not see Grandma at all– unless she’s gone to court.

Today, all states have statues authorizing a court to award visitation to a grandparent under certain circumstances.

California allows a grandparent to request visitation in a custody proceeding. Family Code § 3101 (a). Here the grandparent is joined as a party into the action. Another procedure for a grandparent seeking a court-ordered visitation right is for the grandparent to submit an independent petition. Family Code § 3104.

California requires two prerequisite findings before granting visitation rights to a grandparent. First, there must be a preexisting relationship and bond between the grandparent and the grandchild and second, the requested visitation must be in the best interest of the child. If the prerequisites are found, the court must also balance the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority. Family Code § 3103 (a) (2).

These visitation orders cannot interfere with a nonparty birth parent’s visitation rights. Family Code § 3104 (g).

California does not allow the grandparent to petition if the family is still intact and the parents simply refuse to allow visitation. Exceptions to this rule, however, can be found when the child’s parents are married but are currently living separate and apart on a permanent basis Family Code § 3104 (b) (1); or one of the parents has been absent for more than one month without the other spouse knowing the absent parent’s whereabouts Family Code § 3104 (b) (2); or one of the parents joins in the grandparent visitation petition Family Code § 3104 (b) (3); or the child is not residing with either parent. Family Code § 3104 (b) (4).

In contrast to California, Virginia has a broader law allowing grandparents to seek visitation even when the parents and children are in an intact household. Virginia’s Supreme Court rejected a challenge to its third party visitation law, on the grounds that it interfered with a parent’s constitutional right to autonomy in child rearing. The court held that the statute would be constitutional even as applied to intact families if visitation were ordered even over the objection of a parent on a showing that the child would be harmed without such visitation. Williams vs. Williams.

Virginia is in the minority. Most courts do not allow a grandparent to come into court if the family is still intact. The intent is to preserve the parents constitutional right of privacy and autonomy in child rearing.

Illinois recently upheld the constitutionality of its grandparent visitation law which allows an award only when the family is not intact. The statue allowing grandparent visitation only for non-intact families was not a violation of the equal protection clause of the constitution. West vs. West (1998) 689 N.E. 2d 1215.