What are Grandparent Rights?
Any rights that grandparents may have are purely statutory (White v. Jacobs (1988) 198 Cal.App.3d 122, 124-125). If you look carefully at the family codes that give rise to grandparent custody / visitation you will see that it is not the grandparent that has rights but the child. The rights of the child are encompassed in the “best interest” standard. [See Family Code Section 3021, 3102, 3103] which is at the discretion of the court. The court may grant visitation to a grandparent if the court determines it is within the child’s best interest. [Family Code Section 3103.]
Furthermore, on a petition to the court by a grandparent of a minor child, the court may grant reasonable visitation rights if the court finds (1) there is a preexisting relationship between the grandparent and the child and it is within the child’s best interest; and (2) the court must balance the interest of the child in having visitation with the grandparent against the right of the parent to exercise their parental authority. [Family Code Section 3104.]
Grandparents who seek custody or visitation should also be aware that they are opening themselves up to possibly paying child support. According to Family Code Section 3104(g)(2) once visitation or custody has been established a parent can seek child support from a grandparent and a grandparent my seek child support from the parents. Therefore, it is a possibility that if the grandparent makes more money than the parent the grandparent may have to pay child support.
Are Step-Grandparents treated differently?
In today’s society of blended families step-grandparent often take on the role of grandparent. While it can be argued that step-grandparents also have visitations rights the legislator was careful to make sure that a natural parent was not divested of their rights. Therefore, according to Family Code Sections 3103(e) & 3104(g) a grandparent may not be granted custody or visitation of a child if it conflicts with the right of custody or visitation with a birth parent who is not a party to the action. This means that if the visitation you are seeking conflicts with your step-grandchild’s birth parent the court cannot grant you visitation or custody.
As you can see there are many obstacles that a grandparent must overcome in order to obtain visitation or custody of their grandchild(ren). Therefore, it is important that you consult and hire an attorney who understands this area of law and can do the research that is needed to help you in your particular case. At the Law Office of Margaret D. Wilson we know that the area of Grandparents Rights will continue to change and do whatever we can to stay on top of those changes.