Santa Rosa Family Lawyer Blog

Q: I am concerned about my grandchildren and have not been able to visit them at all for many months now; do I have any legal rights to visitation with my grandchildren?

A: Yes, but as with most legal matters, it depends on the specific facts of each situation. In a very general sense, Family Code § 3100 grants the court jurisdiction to award visitation rights to any other person (i.e. grandparents, stepparents, etc.) having an interest in the welfare of the child.

Therefore, grandparents may petition the court for visitation with their grandchildren in the following situations:

• When a parent is deceased (Family Code §3102);
• When there is a pending family law proceeding where child custody is already at issue (Family Code §3103);
• The parents are not married to one another, including after dissolution of a marriage (Family Code §3104)
• The parents are married but are living separate and apart on a permanent or indefinite basis and satisfaction of additional statutory requirements (Family Code §3104)

The central theme that is common to all of the above situations is the obligation of the court to make a decision in the best interests of the children, or in this case, the grandchildren.

Grandparents petitioning the court under Family Code §3102 can only do so when a biological parent is deceased.

Family Code §3103, permits grandparents to petition the court for visitation when a family law proceeding is pending and the issue of child custody is already at issue. However, if a petition is filed under this section, any visitation awarded to a grandparent would automatically terminate upon the court issuing a judgment regarding dissolution of marriage or determination of parentage. Thus, a grandparent would then be forced to file a petition under Family Code §3104.

Grandparents bring a petition for visitation under Family Code §3104 when the parents a legally separated, divorced or living separate on a permanent basis. However, grandparents should be aware that the court must make a threshold determination as to whether a bond or relationship exists between the child and the grandparent. This requires the court to strike a balance between the grandparent's interest in visitation and the right of parents to exercise authority over the child.

Grandparents petitioning the court under Family Code §3104 may have to overcome several rebuttable presumptions, depending on the wishes of the natural parents of the grandchildren. For example, if the natural or adoptive parents of the grandchild agree that the grandparents should not have visitation, a rebuttable presumption arises that it is not in a child's best interest that the grandparents should not have visitation rights. [See Family Code §3104(e).] However, case law has stated that this presumption does not apply when one of the parents supports the grandparent's petition for visitation and the other parent opposes it. (See Marriage of Harris 2004, Cal.4th 210.)

Therefore, as you can see, depending on the unique facts and circumstances of each case, grandparents do have the right to have visitation with their grandchildren.

This blog has discussed what to do when a visitation dispute arises, but what can you expect from visitation on a regular basis? Visitation is not the same as joint custody. While there may be visitation in a joint custody situation when one parent has sole physical custody, visitation is frequently awarded when one parent has both physical and legal custody of the children. The court believes that it is in the children's best interest for the other parent to see them regularly. If you find yourself in a situation where you or your ex-spouse has visitation rights, find out more from a California family law attorney about what these rights involve.

Do I Get to Decide When and Where I Meet the Children?

Usually the custodial parent has the power to decide the time and place of the non-custodial parent's visit with the children. However, since it tends to be the source of many ugly disputes, sometimes resulting in the non-custodial parent getting little contact with the children, courts prefer that you and your ex-spouse create a parenting plan ahead of time that outlines visitation rights. If this does not succeed, the parent being denied visitation can petition the court, which may then order mandatory visitation rights.

Do I Still Get to Make Decisions About My Children's Upbringing?

If you are a non-custodial parent with visitation rights, you do not have the legal authority to make decisions about your children concerning issues such as school, religion, medicine. However, a good relationship with your ex-spouse might allow you to give feedback about the children's needs and have it be factored in. If you are a parent with legal, but not physical, custody, you have the legal authority to make decisions about your children. More courts are moving away from granting sole legal and physical custody to one parent, allowing more cases in which both parents have the legal authority to make decisions about the children.

If My Ex-Spouse Does Not Appear to be Treating the Children Well, Can I Petition to Modify the Custody Arrangement?

Yes, you can petition the court for a modified custody arrangement. Be prepared to provided documented evidence of your ex-spouse's lack of care. Also, you may have a more difficult time establishing that you deserve custody if you deliberately left the family, leaving your children with the other parent.

What if My Ex-Spouse Wants to Move?

California courts will allow the spouse to move if he or she has a good reason. However, they might deny it if the move would be too detrimental to the child, or the custodial parent was moving just to deny the other parent visitation rights.

Children are precious. Unfortunately, in many Santa Rosa child custody and visitation disputes, the children are considered the prize that both parents want to win. Sometimes a parent will take advantage of visitation and refuse to return a child at the agreed-upon time. If there is no court order regarding physical custody, Sonoma County law enforcement cannot do anything unless the child is in danger. If you find yourself involved in this difficult circumstance, there are some things you can do to ensure you are acting in the best interests of your child and within the law.

Try to Talk it Out
The very first step should be to attempt to work things out with your ex without involving outside parties. You should attempt to find out why your ex does not want to return the children. Does she feel like they do not get enough time with the children? Does he have concerns about the health and safety of the children while they are in your care? Find out if you can resolve these issues between the two of you.

Contact Law Enforcement
While your local Sonoma County law enforcement officials will not be able to do anything unless the children are determined to be in danger, call them anyway and ask to file a statement. This protects you by having the situation officially documented. This is important because the children's other parent could state that you refused to pick them up and this will alleviate this.

Document Everything
Make sure to write down when you dropped the children off, when you attempted to pick them up and any conversation that took place between your ex and yourself. You should also note your children's behavior that you are able to observe - were the children trying to get out the door when they saw that you were there? Could you hear them in the home? Did you get to see them at all?

Go to Court
If there is already a custody order in effect, then there are procedures in place for going to court to file for a contempt of court complaint and obtaining an emergency custody order. You may consider contacting an experienced and knowledgeable attorney to ensure that you and your children are being protected. Other services or programs may be ordered at that time, such as parenting education, home studies, background checks and possibly psychological testing and counseling. At this time, the judge will also approve a temporary custody order which will stand until programs are completed and the final custody order is determined.

Sonoma County Child custody and visitation disputes can be a stressful part of divorces and breakups. It is hoped that both parents are able to communicate well enough to work through these issues on their own. However, if you are unable to resolve these disputes on your own, the legal system will become involved and decide for you, in the best interests of the child.