Grandparents are often concerned about how their relationship with grandchildren will be impacted when parents divorce. Sometimes arranging visitation on an informal basis is not an option. In those cases, California Family Code provides opportunities for grandparents to formally request visitation with grandchildren under several different types of circumstances. (See for example, Family Code sections 3021, 3040–3041, 3100–3105, and 3120.)

The parents retain their Constitutional and legal rights to make decisions regarding the care, custody, and control of their children and if grounds exist, the parent(s) can object to a grandparent’s request for visitation. The U.S. Supreme Court has held that a family court may not grant visitation to a non parent over a parent’s objection without violating a parent’s constitutional rights, absent specific circumstances and procedures that ensure due process.

Before ordering grandparent visitation, the court makes a finding that the visitation would be in the child’s best interest. There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the child’s best interest if both parents agree that the grandparent should not be granted visitation rights. This presumption may be overcome by a finding that the best interest of the child is supported by such visitation, even over the wishes of two fit parents. This often occurs in the case where the child(ren) have an established bond and relationship with the grandparents that would be disrupted by a divorce if visitation rights are not granted to the Grandparents.

In some situations, even if the parents are married and not contemplating divorce, a grandparent may seek visitation.

If a court orders grandparent visitation under Family Code sections 3103 or 3104, it can allocate the grandparent’s visitation time between the parents for purposes of calculating guideline child support. The court may also order a parent or grandparent to pay to the other an amount of support for the child or grandchild. (See Fam. Code §§ 3103(g), 3104(i).) In such a situation, “support” means visitation-related costs such as transportation and basic expenses for the child or grandchild, such as medical expenses and daycare costs.

The legislature has plainly limited visitation rights in Family Code section 3104 to the parents of the mother or father of a child; thus great-grandparents are not entitled to standing under that statute to seek visitation with great-grandchildren.

It always amazes me how many people contact my office wondering whether they are divorced. You’re probably thinking what I’m always thinking: How could you NOT know whether or not you are divorced? 100% of these calls come from people who thought they could handle their divorce on their own, i.e. they were self-represented.

I recently got such a call. In October of 1986, he and his (thought-to-be) ex wife filed a joint petition for Dissolution. Unfortunately, that’s all either of them ever filed. They thought that was all that was needed. They didn’t know any better. He wants to retire now and reached out to Social Security and his Pension plan to find out what steps he needs to take to collect his benefits. Both entities requested proof that he divorced from his first wife. I say “first” wife because both he and (thought-to-be) ex wife remarried other folks some 20+ years ago. Guess what. He was never legally divorced from first wife. His second marriage is void (i.e. invalid) and he can’t collect his benefits until he fixes the problem.

Divorce isn’t that easy folks. Don’t go it alone. Get a lawyer to do it for you and to get it done properly the first time.