Under certain circumstances, grandparents may seek visitation rights by commencing an independent action under California Family Code, Sec. 3104.
Two Prong Test
Two requirements must be met before the court will rule on a grandparent’s visitation petition:
First, the court must find that there is a preexisting relationship between the grandchild and the grandparent “that has engendered a bond such that visitation is in the best interests of the child”; and
Secondly, the court must balance the child’s best interest in grandparent visitation against the parents’ right to exercise parental authority.
When Parents are Married
A grandparents petition for visitation may not be filed while the child’s natural or adoptive parents are married unless the parents are currently living separate and apart on a “permanent basis”; one of the parents has been absent for more than one month without the other parent knowing the absent parent’s whereabouts; one of the parents joins in the grandparents’ visitation petition; the child is not residing with either parent; or the child has been adopted by a stepparent.
Rebuttable Presumptions Against Grandparent Visitation
The is a rebuttal presumption that grandparent visitation is not in the child’s best interest if the natural or adoptive parents agree the grandparent should not be granted visitation rights. A similar rebuttable presumption operates where the parents do not agree, but the custodial parent objects to the grandparent visitation.
When Custodial parent Activated to Military Service
A temporary custody modification may be made when a custodial parent’s activation to military service requires her/him to relocate a substantial distance from home or otherwise materially affect his/her ability to exercise custody or visitation rights. In these circumstances, on the relocating parent’s motion/request for order, the court may grant reasonable visitation rights to a stepparent, grandparent or other family member provided the court also finds a preexisting relationship between the child and the non-parent “that has engendered a bond such that visitation is in the best interests of the child”; that the family member visitation will facilitate the child’s contact with the relocating parent; and balances the child’s best interest in the family member’s visitation against the parents’ right to exercise parental authority.