When grandparents find themselves amidst a family rift that results in having their contact with grandchildren cut off, it is common for the grandparent to consider filing a lawsuit in order to regain visitation rights to their grandkids. Family Law Attorney Wail Sarieh explains what you need to know about grandparents’ legal rights regarding having contact with their grandchildren, and what you need to consider if you are thinking about taking legal action after being cut off from your grandkids.
Do Grandparents Have Legal Rights to See Their Grandchildren?
California laws give grandparents the right to ask a court for reasonable visitation with a grandchild. Chapter 5 of California Family Code, Section 3103 says that “the court may grant reasonable visitation to a grandparent of a minor child of a party to the proceeding if the court determines that visitation by the grandparent is in the best interest of the child.” If a grandparent is seeking to obtain visitation rights, he or she carries the burden of proof to demonstrate to the court that visitation is indeed in the child’s best interests.
Additionally, the grandparent seeking visitation rights must prove that there is an existing personal bond between the grandparent and the grandchild, and that removing visitation rights will jeopardize that bond and negatively impact the child. In most cases, courts are not likely to grant visitation rights to grandparents who were not previously present in the child’s life and who have no previous personal bond with the child.
Can a Parent Deny a Grandparent Visitation in California?
In some cases, parents are able to exercise their right to make decisions on behalf of the child’s best interests and limit or cut off the child’s contact with the grandparents. Generally speaking, a California court will likely not accept a petition for visitation rights from a grandparent if the child’s parents are still married and one or both parents do not wish their child to interact with the grandparents for any reason.
There are, however, a few exceptions to this rule. A petition for visitation rights could be considered by a court if one or more of the following scenarios take place: the parents are still married but (1) are separated; (2) one of the parents has been missing or their whereabouts have been unknown for at least a month; (3) the grandparent is joined by one of the parents in filing a petition; (4) the child does not live with either of the parents; (5) a stepparent adopted the child, or (6) one of the parents is incarcerated or involuntarily institutionalized. If a petition for visitation rights is granted under these circumstances, there is always the possibility that the grandparents’ visitation rights will end if the above scenarios no longer exist, as parents can ask the court to end visitation rights once these exceptions no longer apply.
What Should I Do If I Am Not Being Allowed to See My Grandchildren?
There are a few things to consider if you are dealing with the unfortunate situation of not being able to see your grandchildren. It is a painful situation that can get overwhelming, but it is important to carefully think about the best way to come to a favorable outcome. The first step is to try and reach a resolution outside of the courtroom.
If you haven’t been able to carry out a reasonable conversation with the child’s parents, you may need to consider investing in a mediator. A mediator is a professional trained to deal with difficult situations by helping individuals on each side of an argument to come to a mutual agreement without needing to take their dispute to the courtroom. If that does not work, your next best move is to seek the help of an experienced family law attorney who can analyze your situation and advise you on whether filing a petition for visitation rights is recommended or not.
What Happens When a Grandparent Files a Lawsuit for Visitation Rights?
If you have decided to take legal action to restore your visitation rights, you will need to serve a copy of your petition to the child’s parents and/or to anyone who may have physical custody of the child. It is not uncommon for a judge to send your case to mediation before hearing it in the courtroom. If mediation fails, the mediator will then recommend that a hearing be scheduled before a judge.
A court will consider a host of factors when deciding whether to grant visitation rights to a petitioning grandparent. Those include the child’s health, well-being and overall safety; whether the petitioner has any history of domestic violence, abuse, use of drugs or alcohol, and the child’s opinion if he or she is at least 14 years old. If a court grants visitation rights to a grandparent, the grandparent may also be ordered to pay child support to cover limited expenses such as transportation, medical expenses or other necessities.
Taking legal action to restore your visitation rights may deepen the family rift that caused the child’s parents to prevent you from seeing your grandkids in the first place. If you are considering filing a petition, it is recommended you seek the help of a skilled family law attorney who can better advise you about your options. The Sarieh Law Offices Alc. offer a free 30-min case evaluation for clients in Orange County, CA. We look forward to assisting you!