The government states that 10 percent of American children live with at least one grandparent, and that number does not include the number of grandparents who provide extensive financial and/or emotional support to their grandchildren. While a few grandparents are little more than babysitters and may even be reluctant to have a close relationship with their grandchildren, most of them go all in emotionally.
While these bonds often take months or years to form, a divorce can sever them practically overnight. Often one parent wants to “punish” the other parent, and does this by cutting off or limiting contact with that parent’s parents. Fortunately, if you are in this situation, you have some legal options in California.
Not all grandparents have a legal right to visitation with their grandchildren, because if the parents or married, they can basically block such access unilaterally, and grandparents have little or no recourse. However, if the children’s parents divorce, the grandparents may either intervene in the proceedings to obtain access or file separate actions.
The law got a lot more interesting when, in 2013, Governor Jerry Brown signed Senate Bill 274. According to Steven Fernandez, a divorce lawyer in Los Angeles, “Although the provision itself has nothing to do with grandparent rights, this law overturned the commonly-held rule that children can have only two parents.” S.B. 274 came into being as a result of a very, very convoluted case involving a biological mother, a same-sex partner, and a biological father.
In grandparent visitation cases, the new Family Code 3040 arguably means that the presumption against grandparent visitation is no longer as strong as it once was, because the law explicitly acknowledges that three, or more, is no longer a crowd.
S.B. 274 did not abolish this presumption, so grandparents seeking visitation must establish that such contact is in the children’s best interests. To determine best interests, the court considers:
- Health and safety of the children,
- Prior drug use,
- History of domestic violence, and
- Prior relationship between the party seeking visitation and the children.
The fourth factor is the big one. Essentially, grandparents must produce evidence that they were more than babysitters. In addition to items like theme park and movie tickets, grandparents probably need witnesses who saw them take the children to birthday parties and music lessons, observed them helping with homework, and so on. Technically, the grandparents must present enough evidence to overcome both the presumption against access and any contrary evidence that the responding parent may produce, so the evidentiary threshold is more like clear and convincing evidence. One final note on this point: the court sometimes considers the parties’ motives in bringing or responding to the action, so if one parent really just wants to “get back at” the other one and is willing to use the children to do so, most judges will take notice.
In terms of visitation periods, most grandparents will get one weekend a month. The court will carve out the time from the respondent’s parenting time, so if Mother objected to Father’s parents’ request for access and the court grants the petition anyway, Mother will lose a weekend.
Furthermore, most courts will impose a child support obligation on grandparents in these situations. Such an obligation is usually limited to transportation expenses and maybe a few dollars in daily support. Bear in mind that nonpayment of support never justifies denying court-ordered visitation.
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