Archive | September, 2012

Do I have legal rights to visitation with my Grandchildren?

24 Sep

Unfortunately, family conflicts can stretch beyond the biological parents. Many times, grandparents are affected by disruption to the family unit as well. Visits with grandchildren get pushed aside, which can be quite upsetting to a loving grandparent. Fortunately, in some circumstances a grandparent can turn to the courts for help establishing regular visits with grandchildren. The court will then determine whether the visitation is in the best interests of the child.

The Family Code in California allows a grandparent to petition the court for visitation if certain circumstances exist. First, if a parent is deceased, the grandparent can petition for visitation as long as the child is not adopted by someone other than a stepparent or another grandparent. In fact, even if visitation is established prior to adoption by a third party parent, it automatically terminates upon this adoption.

More commonly, a grandparent can petition the court for visitation rights during a divorce proceeding or other family law matter in which child custody is at issue. Visitation rights may not be granted in this scenario, however, if doing so would conflict with a right of custody or visitation of a birth parent. Even though a petition for visitation under these circumstances often involves a contested divorce, there is a rebuttable presumption that grandparent visitation is not in the best interests of the child if the child’s divorcing parents agree that the grandparent should not be granted visitation.

A grandparent can also petition for visitation outside of a divorce or family law custody proceeding, if the birth parents are not married to each other, or are married but are living separately on a permanent or indefinite basis. In this situation, a court has the authority to order visitation to a grandparent if and only if it finds that there is a preexisting bond between grandparent and child such that visitation is in the child’s best interest and then balances that interest against the parents’ right to exercise parental authority. As with visitation petitions in divorce proceedings, there is a presumption that grandparent visitation is not in the child’s best interest when the parents agree that the grandparent should not have access to the child. Additionally, under circumstances where one parent has been awarded sole legal and physical custody of the child, there is a presumption that grandparent visitation is not in the best interest of the child when the custodial parent objects to the visitation.

Grandparents who seek visitation orders should be aware that doing so can raise support issues. Under California Family Code, a court that orders grandparent visitation may allocate visitation time between the two parents so as to not have an adverse impact on child support. A parent or grandparent may also be ordered to pay the other some amount of support for the child or grandchild, usually to cover necessities such as transportation and medical expenses.

Due to the involved nature of these proceedings, and potential financial effects, it is always best to consult with an attorney before taking a case to court.