How Can a Grandparent File for Visitation Rights?

In California, grandparents can file for visitation with their grandchild in certain circumstances. In today’s blog, we will go over the eligibility requirements for grandparents interested in visitation and the filing process with the court.

How Does a Grandparent Apply for Visitation?

Who Is Eligible?

Under California law, a grandparent can ask the court for reasonable visitation with a grandchild. To give a grandparent reasonable visitation with their grandchild, the court must:

  • find that there was a pre-existing relationship between grandparent and grandchild that has “engendered a bond” (there is such a bond between them that visitation is in the best interest of the grandchild); and
  • balance the best interest of the child in having visitation with a grandparent with the rights of the parents to make decisions about their child.

Note that in most cases, grandparents cannot file for visitation rights while the grandchild’s parents are married. Exceptions, however, are if:

  • the parents are living separately;
  • a parent’s whereabouts are unknown (and have been for at least a month);
  • one of the parents joins the grandparent’s petition for visitation;
  • the child does not live with either of their parents; or
  • the grandchild has been adopted by a stepparent.

A grandparent who wants to ask the court to order visitation with their grandchild can file a petition in court. If there is already a family law case filed between the child’s parents (divorce, parentage case, child support, or a domestic violence restraining order), a grandparent may be able to ask for visitation under one of those existing cases. If there is no open case, the grandparent may have to file a petition in court starting a case from scratch, done best with the help of a lawyer.

The Application

In general, a grandparent who wants to ask for visitation with a grandchild must first fill out their court forms and any additional papers to open a case, such as a Request for Order. In the request, grandparents should expect to explain what type of visitation schedule they would like to have with their grandchildren and why. The judge must consider what the grandparent-grandchild relationship is and why visitation is in their grandchildren’s best interests to. Be sure to make at least 3 copies of all the forms for reference; one copy will be for the applicant and the other 2 for the grandchild’s parents.

After the clerk reviews the application, the grandparent(s) will receive a court date or mediation date. Note that the applicant and the grandchild’s parents may have to meet with the mediator before the court date.

Once the visitation papers are filed, the law requires the grandparent to give notice (“serve” the papers) to the parents and anyone else who has physical custody of the grandchild. Be aware that if the grandparent filed their petition under a case that was already opened involving the grandchild and their parents, they can give each parent notice by certified mail, return receipt requested with postage prepaid, to each parent’s last known address or to each parent’s lawyer in the case. If the grandparent had to start a new case to ask for visitation, they must give notice by personal service, which means hand-delivering a copy of the papers to each parent and person with custody.

It is also important that the applicant fill out proofs of service to make sure they specified that they served by certified mail. They should attach the return receipt for each of the parents and give them so they can file them with the court.

Once the parents are notified, there may be a court hearing in front of a judge or commissioner. Alternatively, the parties may be ordered to go to mediation with Family Court Services mediation to try to work out a visitation agreement. If you cannot reach an agreement, the judge will make a decision based on the best interest of the child and will balance the child’s best interests with the right of parents.

Seek a Lawyer for Legal Guidance

If you are a grandparent interested in visitation with your grandchild, you have the right to apply with the court. The filling process will require the involvement of the grandchild’s parents, whether in a traditional family court or in mediation. For legal support in the grandparent visitation filing process, let an experienced California family lawyer help.

Contact Claery & Hammond, LLP for a free consultation to discuss your case today!