Dear Counselor: What are a grandparent’s legal rights?

Question: My wife and I have two beautiful grandchildren that we love very much. After my son’s divorce, he and the grandchildren stayed with us. But my son and I had an argument recently, and he moved out. We speak occasionally, but he always avoids bringing the grandchildren to us. Do my wife and I have any rights as grandparents to visit our grandchildren?

Answer: The relationship that a grandparent has with a grandchild can be deeply meaningful for the child and the grandparent. When parents act in such a way to hinder or even deny that relationship, the pain of separation can be profound for the grandparents and heartbreaking for the child.

Although our law is generally protective of seniors’ rights, grandparents have no fundamental right to visit their grandchildren. Instead, it is parents who have the constitutionally protected right to the care, custody and control of the child. To the extent that you are seeking an order of the court requiring grandparent visitation, you are asking the government to impinge on the fundamental liberty interest of your son. You face significant legal hurdles in achieving the objective.

That said, constitutional rights and freedoms are not absolute. You can’t yell “Fire!” in a crowded theater, and your right to bear arms doesn’t permit you to own a grenade launcher. In other words, not every parent can prevent a grandparent from obtaining visitation.

California law provides three statutes that set forth the circumstances under which a grandparent can petition for visitation and perhaps intervene in the parent-child relationship.

The first is a special provision for grandparents when the parent of a minor child is deceased. The application of the other two depend on whether the parents are in a legal proceeding over custody. If the parents are in the midst of a custody fight, the chances of obtaining court-ordered grandparent visitation is better than if they are not. You can simply “join” into the divorce or other custody litigation and argue that visitation is in the best interest of the child.

Given that your son has already been divorced, you will have to bring an independent lawsuit in which you must make a significant showing at the outset of the case. You will have to demonstrate that you have a “pre-existing relationship” with the grandchild and that your visitation with the grandchild is in the child’s best interest.

When the court looks to the pre-existing relationship, it will require evidence of the relationship that you have already had with the grandchildren, not the relationship you hope to have. You will have to show that you have a strong bond with your grandchild. You may prove this bond by producing evidence of the time you have spent together. Next, you will have to show that the child’s best interest in visitation with you outweighs the right of your son to exercise parental authority.

Legal presumptions will be working against you. Think of a legal presumption as the direction of a river. While it’s not impossible to swim upstream, it is certainly requires a lot more effort. And some rivers are faster moving than others.

The Supreme Court has stated that our Constitution requires that the court give “special weight” to a fit parent’s determination as to what is in the child’s best interest. Translation: That’s a fast-moving river.

Assuming your son is a fit parent, if he says “no,” then you and your wife will have to provide significant evidence to overcome his desire.

Depending on the facts of your case, you may prevail in a fight for grandparent visitation, but I would certainly recommend exhausting any and all alternatives before turning to the courts.


Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm specializing in family law, estate planning and trust litigation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at www.kopperlaw.com

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By | 2017-08-06T16:28:25+00:00 February 21st, 2016|Dear Counselor|0 Comments

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