Do Grandparents Have Rights in California?

While not all grandparents are created equal, for the most part they can be pretty amazing to grandchildren. For children, grandparents can provide love, stability, mentoring, support, wisdom, guidance, and fun. But kids aren’t the only ones to benefit.

Ask any grandparent who’s active in their grandchildren’s lives and they’ll openly admit how much they love being a grandparent. After all, caring for grandchildren can keep older adults active. It can enhance their family relationships. It can make them feel needed and loved. It can help keep them mentally sharp, and it can stave off depression.

For many grandchildren, grandparents are like a security blanket. When the going gets tough, even with their own parents, grandparents can provide security, stability, and unconditional love. Kids benefit when they know they have a grandparent who is always on their side, who will comfort them, and listen to them.

According to an article published by U.S. News & World Report, “Nearly 2.7 million U.S. grandparents are householders responsible for grandchildren who live with them.” The article continues, “Grandparents like these often say they had to step in to keep their grandchildren safe, provide emotional support and create a calmer environment.”

Some of the common reasons why grandparents have to step in include:

  • Substance abuse
  • Mental illness
  • Domestic violence
  • Military deployment
  • The custodial parent dies
  • Child neglect or abandonment
  • One or both parents are in jail or prison

Before we explore the visitation rights of grandparents in California, check out these “GrandFacts” prepared by AARP:

  • In California, 1,221,251 children who are under the age of 18 live with their grandparents or other family members. Of those, 826,037 children live with grandparents who are the head of the household.
  • Sometimes, children end up living with their grandparents because they are placed there by child welfare agencies.
  • Under state law, when a child is placed in foster care by a county, the social worker and the court must give preference to certain relatives, such as grandparents, aunts, uncles, and adult siblings.
  • The California Kinship Guardian Assistance Payment Program (KinGAP) is a subsidized guardianship program for children in foster care who have lived with a relative for at least six months. This program can help grandparents provide for their grandchildren!

Visitation Rights of Grandparents in CA

If you are a grandparent who is interested in getting a court order for visitation of your grandchildren, our guess is that something has happened to threaten your relationship with your grandchild.

Perhaps a stepparent adopted your grandchild and your son or daughter waived (or lost) their parental rights. Perhaps your child is separating from or divorcing your grandchild’s other parent. Or, the child doesn’t live with their mom or dad, but somebody else.

The question is, can you ask the court for visitation rights? Under California law, it is possible for a grandparent to ask for visitation with their grandchild, but in order for visitation to be granted, the court needs to find that:

  • The grandparent had a pre-existing relationship with their grandchild, that a bond has been created and therefore granting visitation would be in the child’s best interests, AND,
  • The court must balance the child’s best interests in regards to visitation with the parent’s rights to make decisions for their son or daughter.

When Can Grandparents Ask for Visitation?

Generally, if the parents are married to each other, the grandparents cannot petition the court for visitation rights, but there are exceptions to the rule, such as:

  • The parents don’t live together,
  • The parents have separated,
  • One parent has been missing for at least a month (his or her whereabouts are unknown),
  • One of the parents petitions with the grandparent,
  • The child doesn’t live with either parent; for example, the child lives with a foster family, or with a friend’s parents, OR
  • A stepparent adopted the grandchild.

When Grandparents Raise Grandchildren

There’s another issue and that’s of grandparents who are raising their grandchildren. Usually, this is the case because the biological parent was a teenager when they had the child, or because they are in jail, or have a substance abuse problem. Sometimes, the parent is single and too busy partying or focusing on their education or career and they leave their child in the grandparent’s constant care.

Are you a grandparent who has been raising your grandchild for any of the reasons mentioned above, or for a similar reason? If the child’s parent is absent or cannot care for their child for some reason (like incarceration, work, deployment, or jail), you may not be seeking visitation, you may actually be seeking “guardianship.”

When a grandparent wants custody of their grandchild or grandchildren, and not just visitation rights, it’s not called visitation, it’s called “guardianship.” The court process for guardianships is separate from visitation.

Petitioning the Court for Visitation

If it is visitation that you’re seeking, by law you have the right to petition the court. However, it is difficult for grandparents to figure out how this petition should be filed, which is why we recommend contacting our firm to work with a Los Angeles child custody attorney. If there is a family law case filed by either of the parents, such as a divorce, paternity action, child support, or domestic violence restraining order, you may want to ask for visitation under one of those cases.

Related: 12 Tips for Winning Child Custody

On the other hand, if there is no open case, you may need to start a case from scratch. Our advice is to contact our firm and schedule a free case evaluation so you can fully explore your legal options.

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