September 9, 2004

Devries Column

Grandparents’ rights clarified by California Supreme Court

This week’s question:
I have heard conflicting views about grandparents’ rights to see their grandchildren when their children are going through or have been through a divorce. Can you tell me whether we have any right to see our grandchildren if our children go through a divorce?

Angi A.
Almaden Valley

Dear Angi,
Your question is a timely one, Angi. Actually, the California Supreme Court just issued a decision involving this topic that may well be of interest to you. The opinion was issued Aug. 23, 2004.

In short, grandparents may have the right to visit their grandchildren, but only if they can overcome parents’ objections.

First of all, I need to let you know that I may be biased in favor of grandparents since my wife and I have the three most beautiful, smartest, and well behaved grandchildren anywhere. Just kidding.

The case is entitled In re the Marriage of Karen and Charles Harris. In that case that arose in Fallbrook, San Diego County, the trial court gave extensive visitation rights to the paternal grandparents of a 5-year-old girl, Emily. This had the approval of the father but was over the objection of the mother who had sole custody of the child.

The California Supreme Court basically found California law constitutional and upheld the grandparents’ right to have visits with their grandchildren, but only if they can overcome the parent’s objections.

The Court discussed California Family Code §3104. This statute provides that grandparents can file a petition with the court to have reasonable visitation rights with their grandchildren if the court does both of the following:

(1) The court must 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; and

(2) Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.

The California Supreme Court also noted that Family Code §3104(e) provides that there is a rebuttable presumption that the visitation of a grandparent is not in the best interest of a minor child if the natural or adoptive parents agree that the grandparent should not be granted visitation rights.

Also, Family Code §3104(f) provides that there is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the parent who has been awarded sole legal and physical custody of the child in another proceeding or with whom the child resides if there is currently no operative custody order objects to visitation by the grandparent.

In order to properly file a petition for grandparent visitation under Family Code §3104 while the natural or adoptive parents are married, one or more of the following circumstances must exist:

(1) The parents are currently living separately and apart on a permanent or indefinite basis;
(2) One of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse;
(3) One of the parents joins in the petition with the grandparents;
(4) The child is not residing with either parent.

And it should be noted that if at any time a change of circumstances occurs such that none of the above four circumstances exist, the parent or parents may move the court to terminate grandparental visitation and the court shall grant the termination.

It needs to be noted also, Angi, that there are other related Family Code provisions and cases that apply to this issue that are best explained by your own attorney. It is rather risky to focus on just one provision or one case and ignore the others.

If you want to read the entire In re Marriage of Harris case for yourself, the link to the California Supreme Court website is: www.courtinfo. ca.gov/opinions/documents/S101836.PDF. Once again, your own attorney can help you understand the ramifications of this decision and how it may apply to your particular situation. Good luck with those grandchildren!

Donald J. DeVries
Almaden Valley

Donald J. DeVries is an attorney practicing law in Almaden Valley. If you would like him to answer your question in his next Almaden Times column, you can reach him by e-mail at don@almadenvalleylawyers.com, fax at (408) 268-6502, telephone at (408) 268-9500, or mail at, 6475 Camden Avenue, Suite 200, San Jose, CA 95120. Your matters are personal and private, so of course, he will not disclose your identity or any details about your situation. Want to learn about a specific legal issue or how DeVries can help you? Visit his web site at www.almadenvalleylawyers.com. Almaden Times columns since 1986 are available there. DeVries writes this column to provide you with general information about important legal matters affecting California residents—not to give you legal advice about your specific matter. No attorney-client relationship is created by these articles. The law is complex and constantly changing and varies from state to state. So you should consult an attorney before taking any action that would affect your personal or business matters.