Visitation Law Includes Grandparents

Grandparents have legal rights too.

That, at least, is the trend in most states, including California, where new laws enable grandpa or grandma to sue for the right to visit their grandchildren when their own children die or divorce.

The law does not yet allow grandparents to force visitation when both mother and father are alive and happily married.

Join Divorce Case

Under a state law passed in 1983, grandparents have the right to actually join in the divorce cases of their children and petition for visitation rights. The grandparents hire their own attorneys and appear in court, right along with husband and wife. They can attend the family counseling or conciliation services sponsored by the family court and try to work out a visitation program. But, if they can’t agree with husband and wife or their lawyers, the court is empowered to order visitation.

The petition by a grandma or grandpa can be filed during the divorce proceeding or even after the divorce is final, according to San Diego family law specialist Daniel B. Hunter. These types of petitions are infrequent when compared to the number of divorce cases, Hunter says, but usually judges are inclined to award some visitation to the grandparents, though it is often not as much as they would like.

At first, it may seem unreasonable that a mother or father would refuse to allow ol’ friendly grandpa to visit, but when you consider the intense emotions that often surface in a divorce proceeding, it is really not that surprising.

Rather than using the court process to require visitation, it’s always best to work these things out directly with the parents, and that generally means trying to stay out of the divorce fight.

Hunter advises that the best way for a grandparent to avoid being excluded from access to a child by an angry ex-spouse is to remain neutral, friendly to both sides, and far away from the divorce fray.

“If you take sides or appear to take sides,” Hunter warns, “then the other party is going to put you in the same category (as the ex-spouse) and punish you by depriving their children access to you.” Too often, he says, parents use children as instruments to punish the other party and everyone associated with them, including innocent grandma.

“It’s a terrible thing, but it’s a psychological truth.”

Fortunately, California now recognizes that grandparents occupy a special position in the life of their grandchildren. As long as the judge finds that it is in the best interests of the child, grandparent visitation is granted, although it is usually significantly less than that given to a non-custodial parent.

Judges recognize that, ultimately, it is the parents’ responsibility to raise the child. And, if both parents agree that grandparent visitation should be denied, there is a legal “presumption” that visitation is not in the child’s best interests, and grandma will have a difficult time convincing the judge otherwise.

There is another state law that gives grandparents the right to petition the Superior Court for visitation rights to their grandchildren after the death of one of the parents. One reader complains that after her son’s death, her daughter-in-law remarried and that now she rarely gets to see her granddaughter. Under this law, with the assistance of an attorney, she can obtain court-ordered visitation rights if the judge finds that it would be in the best interests of the minor child. Again, the courts have a great deal of discretion in making these determinations.

Bill Enhances Rights

In September, a bill (AB 2645) authored by Assemblyman Wayne Grisham was passed that enhances the rights of grandparents who seek custody of neglected children. The law, which was supported by an organization called Human Rights for Grandparents and Grandchildren, requires the California Department of Social Services to give preference to family members when placing children who are wards of the court, rather than automatically placing them in foster homes. And 80% of the family-member applicants are grandparents, according to an aide to Grisham.

If you are interested in learning more about the movement to obtain legal rights for grandparents, you may write the organization: Human Rights for Grandparents and Grandchildren, 136 N. Grand Ave., Number 229, West Covina, Calif. 91791.

Attorney Jeffrey S. Klein, The Times’ senior staff counsel, cannot answer mail personally but will respond in this column to questions of general interest about the law. Do not telephone. Write to Jeffrey S. Klein, Legal View, The Times, Times Mirror Square, Los Angeles 90053.