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.