Legal Issue Of The Week: Do grandparents have legal rights over their grandchildren?

Grandparents play a very important role in a grandchild’s life.  In some cases it is the grandparent who is raising the child.  However in California grandparents don’t have any rights to the grandkids.  The reason for this is because the grandparent has no legal rights over them as a parent does.  Now there are ways to get legal rights and those typically involve getting guardianship of the minor which can be done by opening a case in probate court or in a dependency case when the court awards guardianship.  However, the process is not an easy one because the burden of proof is very high in demonstrating the child’s best interest would be jeopardized if they remained with their parents.

As to visitation, again the grandparents don’t have any rights and the parents have the right to object to any petition the grandparent files for visitation.  Only in certain circumstances can a grandparent request visitation.  Those circumstances are:

a)  If there is an open case (such as a divorce or separation), it is possible for the grandparent to join in that case as a third party asking for visitation.

b)  If there is no open case, California Family Code Section 3104 and/or 3102, permits the filing of a complaint when the parents are not married, are living apart, or a parent is deceased.

Again the process is not easy and does not automatically grant a grandparent visitation.  The parents objections do carry weight as the law considers the parents capable of making the right decisions for the best interests of the children.  Before the court can give some reasonable visitation it will consider whether the grandparent has an existing relationship which creates a bond and the balance between the child’s best interest with the rights of the parents to make decisions.  

Typically, in these situations I would recommend mediation because the parties can engage in productive communication and problem solving all for the sake of the children.