Oct 22

DO GRANDPARENTS HAVE THE RIGHT TO CUSTODY OR VISITATION OF CHILDREN?

Thomas Ferreira here, your child custody, family and property attorney and mediator serving Carlsbad, Vista, Oceanside, San Marcos and other North County cities.  I wanted to talk to you today about grandparent rights, as these can be problematic for the parents, and for the children.

Here’s the thing:  parental rights of natural (and adoptive) parents are fundamental, and protected by the U.S. and California Constitutions.  This includes a legal presumption that parents are fit and act in their children’s best interests (Troxel   v. Granville (2000) 530 U.S. 57).  The bad news for grandmother and grandfather is that if the parents decide that it is in the children’s best interests to exclude them from the children’s lives, and they are basically adequate parents, there’s not a whole lot a court can do to force visitation for grandparents.

In California, there is a statute known as Family Code sect 3104, which provides that that a court may grant visitation rights to grandparents over the objections of the natural parents.  But before you get too excited about using the power of the state to assert your right to see the grandkids, a court must make findings not only that there is a pre-existing relationship between kids and grandma or grandpa, but that this relationship has engendered a bond such that it is in the children’s best interests to order the visitation.

Showing this type of bond is not duck soup by any stretch.  Those of you who are savvy with the law will know that our state laws are interpreted by appellate courts based on cases that come before them, and that these interpretations become part of the law.  A grandparent case came before the Second appellate district, Rich v. Thatcher (2011) 200 Cal. App. 4th 1176, that has raised the bar considerably for grandparents.  The Rich court found that in balancing the right of natural parents to decide what’s good for children, the standard of proof is that essentially the grandparent must show, by clear and convincing evidence, that the parent’s decision to bar grandparent visitation would be detrimental to the child or children.

That Rich standard is a high bar indeed, and something to be considered before initiating proceedings to request grandparent visitation.

Here’s a link to the court’s website that tells you how to initiate the proceedings.  But given the difficulties of meeting the standard of proof, it behooves all grandparents to honor the wishes of their children (children in law) and maintain good relations with them (a particular hot button for me has been my mother’s annoying habit of plying my kids with toys and candy whenever she comes over).  Disputes are better settled through the mediation process than court, because mediation allows the relationships to remain intact, whereas litigation tends to break them down.

Hoping this helps, I remain …

Very truly yours,

Thomas D. Ferreira, Esq.

Disclaimer: Thomas D. Ferreira is an attorney licensed only in the State of California. The information set forth in this blog or on our websites are not intended to create an attorney-client relationship, nor are they intended as legal advice on your specific matter. This information is not intended to apply to cases or jurisdictions outside the State of California, and those viewing this information outside of California, or having business before jurisdictions outside of California, should consult a local professional or lawyer. The information in this blog is not a substitute for the advice of competent counsel, and is not intended, nor should it be construed, as a guarantee, warranty or prediction regarding the results of your legal matter.

 

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