Grandparents Rights

In 2003 the US Supreme Court dealt a serious blow to grandparents’ hopes of visitation with grandchildren in Troxel v. Granville (2003) 530 U.S. 57, 120 S.Ct. 2054. In that case a Washington statute provided that any person may petition in court for visitation at any time, and that the court may order visitation rights for any person in the best interest of the child. The Court held that law violated the due process rights of the custodial parent, as applied to permit visitation to the parents of the other parent, who was deceased.

After the Troxel case lower courts were denying grandparents’ requests so widely that one California court refused to order that the grandparents could visit, even though both parties agreed to it; that court was reversed, and the visitation was okayed in In re Marriage of Ross and Kelley (2003) 114 Cal.App.4th 130, 7 Cal.Rptr.3d 287. But if all parties agree, normally a court order wouldn’t even be necessary so the case has little application.

Current California law as of July 2009 provides three ways in which grandparents may obtain court-ordered visitation with their grandchildren: Family Code §3104 (during parents' marriage), §3103 (authorizes reasonable grandparent visitation in any custody proceeding), and §3102 (visitation for specified relatives of deceased parent).

California Family Code § 3102 appears to offer hope of visitation to relatives of a deceased parent:

(a) 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.

(b) In granting visitation pursuant to this section to a person 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.

(c) This section does not apply if the child has been adopted by a person other than a stepparent or grandparent of the child. Any visitation rights granted pursuant to this section before the adoption of the child automatically terminate if the child is adopted by a person other than a stepparent or grandparent of the child.

However, in Punsly v. Ho (2001) 87 Cal.App.4th 1099, 1106, 105 Cal.Rptr.2d 139 a California Court of Appeal held that section 3102 is unconstitutional if applied to a fit parent who offers some visitation. In that case the Court of Appeal summarized its understanding of the Troxell case:

The court … made three important determinations. First, the court noted the grandparents did not allege, nor did the trial court find, that the mother was an unfit parent. This fact ran contrary to the presumption that fit parents act in the best interests of their children. Second, the trial court in the case gave no special weight to the mother's determination of her children's best interests. Rather, the findings of the trial court indicated it effectively placed the burden on the mother to disprove a presumption that visitation with the grandparents was in her children's best interests. Third, the court emphasized the trial court's failure to give any weight to the fact the mother voluntarily agreed to allow visitation with her children's grandparents. The dispute at hand arose because the grandparents wanted more than the mother willingly offered. Based on these factors, the court determined the Washington statute, as applied, was unconstitutional. The court concluded "this case involve[d] nothing more than a simple disagreement between the Washington Superior Court and [the mother] concerning her children's best interest." It further explained, "the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a 'better' decision could be made."

Applying the US Supreme Court case to California law, the Court of Appeal held that:

section 3102 authorizes a court to grant such visitation to a child's grandparents solely upon finding it is in the best interests of the child. It is when a court exercises this discretion to substitute its own judgment of a child's best interests for that of a competent custodial parent, that a parent's fundamental rights are threatened. Further, this threat is not mitigated by the appointment of minor's counsel, whose similar function is to provide an independent assessment of a child's best interests. This injection of the state's judgment into the affairs of a fit parent, not the details of the statute authorizing such an intrusion, fueled the Troxel opinion. (87 Cal.App.4th at 1107.)

Thus, if a parent is willing to permit some visitation to the grandparent(s), and that parent is not alleged to be unfit, the California courts will not intervene, even when one parent is deceased. This can have the unfortunate effect that the child loses its parent, and the loss is compounded by almost complete loss of the grandparents---but that’s the law at present.

In another case a step-sibling applied for visitation, and a California appellate court held that Family Code section 3102 is unconstitutional when applied to allow sibling visitation over the objection of a fit parent. Herbst v. Swan (2002) 102 Cal.App.4th 813, 125 Cal.Rptr.2d 836.

Family Code section 3014 gives grandparents some limited opportunity to request visitation, but it applies only if one parent is absent (whereabouts unknown), and the other parent joins in the grandparents’ petition.

If visitation has been granted to a grandparent, and then a step-parent adoption occurs, that is grounds for terminating the grandparental visitation.

The bottom line is: If you’re a grandparent, try to get along with your child and the other parent so you can see your grandchild(ren), even if it is only occasionally. Your rights as a grandparent in relation to an oppositional custodial parent are very, very limited at best.