Far too often in the United States, grandparents are excluded from the lives of their grandchildren, frequently after a major family change like a legal separation or a divorce. A recent survey by the AARP tells us more than a third of all grandparents in the United States provide financial support to their adult children for their grandchildren. Nevertheless, family law attorneys in California and other states often find themselves fighting on behalf of grandparents for visitation rights.
As a rule – and of course, there are exceptions – keeping a child from spending time with grandparents is not only unfair, but it’s actually damaging to the child as well as painful to the grandparents. In Southern California, if you are being prevented from seeing your grandchildren, an experienced Long Beach family law attorney will probably be able to help. Grandparents should know from the start, however, that the law regarding grandparental visitation is complicated, and unfortunately, not all grandparents seeking visitations with their grandchildren will be successful.
In fact, since the year 2000, it’s become much harder for grandparents to win visitation rights from the courts. That’s the year when the Supreme Court tossed out a law in Washington state that permitted courts to allow visitation rights to grandparents when the court deemed that grandparental visitations were in a child’s “best interests.” As a result, in California and the other forty-nine states, grandparents no longer have an absolute legal right to visitation, even when visitation is in the grandchildren’s “best” interests.
WHAT OPTIONS DO GRANDPARENTS HAVE?
Of course, there are exceptions when the court may be able to allow limited visitation rights, but the current law makes it possible in many cases for parents completely to remove grandparents from a child’s life. A parent’s rights are the top legal priority according to the Supreme Court. Winning visitation rights can, therefore, be a considerable legal challenge for grandparents. When both parents do not want grandparental visitations, changing that situation requires a grandparent to present extreme conditions to the court.
But that doesn’t mean grandparents in such circumstances are hopeless. Under current California law, to give a grandparent legal visitation privileges with a grandchild, the court has to find that there is a pre-existing relationship between the grandparent and grandchild that has “engendered” an emotional bond that is in the best interests of the grandchild. The court must also then balance the best interests of the child with the legal right of the parents to make decisions for and regarding their child. In general, state courts are going to rule in favor of the parents, but there may be exceptions when:
- The parents are legally separated.
- A parent’s whereabouts have been unknown for at least thirty days.
- One parent supports the grandparent’s desire for visitations.
- The child does not live with either parent.
- A stepparent has adopted the child.
If a grandparent is granted visitation rights for one of these reasons, and if circumstances later change so that none of these conditions apply, one or both parents may petition the court to terminate the grandparent’s visitation rights, and the court will almost always grant that request. Of course, when it’s possible, it’s always best to try to resolve these matters outside of a courtroom. Before going directly to court, for example, grandparents seeking visitation rights in Southern California may want to consider mediation. It’s a process that can reduce the level of acrimony between the parties while also keeping costs to a minimum.
Mediation is a way to discuss openly and safely your own concerns while working to reach an agreement that is in the best interests of the grandchildren. If you go directly to a California court, a judge will probably order mediation anyway. Some courts may not allow your lawyer to participate in the mediation process, so be sure to talk with your attorney before entering into mediation.
HOW DOES A GRANDPARENT ASK A COURT FOR VISITATION RIGHTS?
A California grandparent who wants the court to order visitation with a grandchild must file a petition with the court with the help of a family law attorney. If there’s an ongoing divorce, child support, or domestic violence case involving the grandchild, the process will be somewhat different. What’s certain is that you’ll need a seasoned family lawyer’s insights, advice, and legal services.
In California, there’s no official statewide form for grandparents requesting visitation privileges, but courts in several jurisdictions have developed their own forms. Be sure that you have an attorney to help you complete the required paperwork – any mistake could end your hopes of winning visitation privileges. What’s most important for grandparents in this situation – when mediation has failed – is what they tell a judge when they finally have that opportunity.
WHAT SHOULD A GRANDPARENT SEEKING VISITATION TELL A JUDGE?
Grandparents seeking visitation rights with a grandchild will need to explain to a judge the nature of their relationship with the child; why it is in the child’s best interests to have visitations with you; and anything else that you think may be important or helpful for the judge to know about your relationship with your grandchildren. A discussion with a Long Beach family law attorney can probably help you identify and articulate your feelings, reasons, and concerns.
When you file the legal papers to request visitation, California law requires you to give notice to the parents (or to the stepparents or anyone else with physical custody of the child). The legal papers must be served by someone at least 18 years old who is not a party to the case. Personal delivery will be required in some cases; in other cases, you’ll be allowed to notify the parties by certified mail. Your attorney can help you make sure that all necessary parties are notified properly.
After the parties are notified, there may be a court hearing. As mentioned previously, you may be ordered to mediation. If no agreement can be reached, the judge will decide the case based on what the court perceives to be the best interests of the child balanced against the right of parents to make decisions in their children’s lives. Every case and every family is different, and California law does not specify any precise legal path for grandparents seeking visitation rights, so the best hope for California grandparents seeking visitation rights with their grandchildren is to speak with an experienced family law attorney and to adhere to that attorney’s advice.