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The Professor Nedley Series

GRANDPARENT VISITATION

May, 2010

          This is a most troublesome area.  Grandparents can often be port of calm in a storm, but sometimes they feel compelled to take sides with disastrous consequences.  Sometimes their own child has become absent from the scene through death or the elements and they are dealing with the other parent who may transfer their feelings to the grandparents.  This is one of the most heartbreaking areas for court decision making and yet the court's power in this area is limited by law.

PROBLEM:  One or both of the grandparents (usually father’s side) have filed a motion. They are before the court seeking visitation because (a) their own child, the parent, has (1) died, (2) disappeared or (3) become so involved with drugs that they are no longer a factor in the child’s life or (b) both parents are competent and involved but are separated and disagree as to the grandparents involvement with the children or (c) both parents are together, involved, competent, and agree that the grandparents should not have visitation with the children.

 THE LAW OF THE LAND: The Federal Parental Kidnapping Prevention Act, (28 USC 1738(a)), was amended in 1998, by the Visitation Rights Enforcement Act of 1998 to ensure that grandparents were included under the FPKPA as well. The VREA specifically states that it is intended to apply to grandparents as well as parents. The purpose of the FPKPA is to provide for the interstate enforcement of child visitation and custody orders. A state visitation order under the act is to be given full, faith and credit by all other states.  In California the grandparents visitation is governed by Fam.C.3102, 3103, 3104, 3171, 3176, 3178 and 3185.

 28 USC 1738A: This federal statute which controls the state court’s interpretation of other states custody/visitation orders makes it clear that all states must give full, faith and credit to the custody/visitation orders of the other states.  “The Visitation Enforcement Act of 1998” amended the FPKPA to the act make it clear that the Act applies not only to parents but to grandparents and not only to custody orders but also to visitation orders. 28 USC 1738A(a) simply states that the appropriate authorities of every State shall enforce the custody/visitation orders of another state without modification (unless there’s jurisdiction and grounds for a modification).  In other words enforce the orders as written whether they’re custody orders or visitation orders and whether it’s a parent or a grandparent seeking to enforce a valid order.

 FAMILY CODE §3102: (Parent deceased) If either parent is deceased this section specifies a number of relatives, including grandparents, who may be granted visitation upon a finding that such visitation would be in the best interest of the minor child.

 FAMILY CODE §3103: (Basic grandparent rights in Dissolution, Separation, Nullity, D.V., or Paternity proceeding) In any of the above proceedings the court may grant visitation to a grandparent if the court determines that visitation by the grandparent is in the best interest of the child. However if there is a DV order against the grandparent then the visitation may be denied.

                There is a rebuttable presumption that “best interest” is lacking where both parents agree that visitation rights not be granted. By definition, therefore if only one parent objects it would seem the burden of proof lies with that parent to show that it is not in the child’s best interests to visit with the grandparents.

                Visitation may not interfere with the rights of the other parent, this would seem to stand for the proposition that the grandparents time is derivative of their own kids time.  In other words GP's share their own kids visitation time.  If he/she has none they have to fight for it on their own over objection by the other parent.

                Grandparents' entitlement to  visitation is not a basis for a change of or a denial of a change of  residence, but may be a factor in a moveaway case.

                Financially, the grandparents’ percentage of time may be considered in setting guidelines and they may be ordered to pay certain costs of visitation such as transportation, medical, daycare and other necessities.

FAMILY CODE §3104: (Direct Petition by the Grandparents) When the grandparents petition the court directly the court may grant visitation if the court finds that there is (1) a preexisting relationship that has created a bond such that visitation is in the child’s best interests AND (2) balances the interests of the child in seeing the grandparents against the rights of the parents to exercise parental authority.

                If the parents are married and living together the grandparents cannot file this petition unless (1) one of the parents has disappeared for more than a month, (2) one of the parents joins in the petition or (3) the child is not living with either parent.  Again the court must consider the existence of a DV against either grandparent as being disqualifying or if both parents agree that the grandparent(s) would not have visitation.

If one parent has sole legal and physical custody or the child has resided solely with one parent and that parent objects that creates a rebuttable presumption that custody is not in the child’s best interest.

 SUMMARY:  It is risky to summarize so complex an area, however, it is clear that both the feds and the state want grandparents to have rights that are enforceable.  It is also clear that grandparents have visitation rights under California law in all but a few circumstances.  In each of cases set forth in the statute the issue seems to focus more on the twin issues of burden of proof and best interests of the child rather than the existence or non-existence of the grandparents rights. Even in the situation where both parents object to the visitation the statute focuses on presumptions and the shifting of the burden of proof.  It also seems reasonable that the grandparent’s time should be derivative of their own child’s time with the kids rather than coming out of the other parent’s time. Clearly the court has the power to deal with the costs so that no burden is placed on the custodial parent by the grandparents.  Ultimately, it all boils down to your instincts about what’s in the child’s best interests.