Grandparents' Rights


Note: this page discusses visitation, not guardianship. Guardianship would mean that the grandparent steps in to become a person with the legal authority and duty to care for the child. For example, if your son is deceased and his ex-wife is a drug addict or in jail, you could petition the court to become the guardian for your grandchildren. Read more about guardianship here. In contrast, visitation is the right to see and spend time with the child, independent of having legal or physical custody.

Usually, visitation is granted to the parents in a divorce or custody case. However, sometimes grandparents need to petition the court for the right to see their grandkids. Many such cases come up because parents have “taken sides” in the divorce or breakup, and often a loving grandma or grandpa is left out in the cold. More importantly, the children are suffering by not being able to enjoy that loving relationship.

Different states have different rules about how and when grandparents can have the right to visits. In California, the Court places great value on a parent’s authority. That means that unless there is a very good reason, the parents themselves get to decide how to raise their child. This includes decisions about health care, education, recreational activities, and who they get to see… including their grandparents.

In California, the relevant statute (Family Code §3104) says that a grandparent may ask the court to grant “reasonable visitation rights,” and that the court may do so if two conditions are met:

First, the Court has to find that there is “a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child.” If you have never met or talked to your grandchildren, there is no “preexisting relationship.”

Second, the Court has to balance (a) the interest of the child in having visitation with the grandparent against (b) the right of the parents to exercise their parental authority.


The Court gives a great deal of weight to what the children's parents think about grandparent visitation. Their opinions may create a rebuttable presumption that the grandparent visitation is not in the child’s best interest.

A presumption is a legal assumption that a fact exists.
A rebuttable presumption is a presumption that could be overcome by the presentation of contradictory evidence. In cases like these, there is a rebuttable presumption that the grandparent visitation is not in the child’s best interest if:

  1. Both of the children’s parents (natural or adoptive) agree that the grandparent should not be granted visitation rights, or
  2. The parent who has sole legal and physical custody of the child feels that that the grandparent should not be granted visitation rights, or
  3. There are no custody orders in place, but the parent who the child lives with objects to grandparent visitation.
There are many factors to consider in grandparents’ cases, but the statute above is the place to start. The Court may well decline to consider visitation for you if you have no preexisting relationship with your grandchildren, and/or if the parents’ right to exercise parental authority outweighs the children’s interest in having visits with you. (Or, of course, if you're not a grandparent. In January 2013, a Colorado court denied a woman’s request to seek visitation rights under a similar statute because she was the great-grandmother and not the “grandparent.”) Court orders will rely on those threshold factors – grandparent, preexisting relationship, balanced interests – being met.

Even if the threshold factors are present, it may be better to consider non-legal solutions to this family problem. Your attorney can advise you on the strength of your case and whether you might want to meet with a counselor who's experienced in family law issues.

Confused? Concerned? Want more information? Contact us to schedule a consultation!
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