In the context of family law, when people hear the word “visitation” they often think of it as relating to how parents will share time with their minor children upon separating. However, visitation is not solely limited to parents. Third parties, such as grandparents, have the ability to seek orders from the court to as to have court-ordered visitation with their grandchildren. There are two avenues grandparents may seek visitation. The first involves a grandparent seeking visitation where there is already a pending custody litigation case (i.e. divorce, legal separation, parentage action, etc.). The second avenue involves a grandparent seeking visitation pursuant to a separate visitation litigation matter (i.e. there is no divorce, legal separation, or parentage action pending).
Regardless of which avenue a grandparent chooses to pursue for filing a petition for visitation, the court must assess whether or not it is appropriate to grant the grandparent’s request for visitation. As with any other custody matter, the court uses the “best interest of the child” standard. Pursuant to Family Code Section 2014, the court may order visitation only if it (1) finds that there is a preexisting bond between grandparent and child such that visitation is in the child’s best interest; and (2) balances the child’s interest in visitation against the parents’ right to exercise parental authority. While this may seem simple enough a burden to meet, the court does not take lightly the parents’ rights to determine what is best for their children. Therefore, it is important for grandparents seeking such visitation to be able to prove that there is in fact such a bond with their grandchildren such that the court would make an order that might perhaps go against the parents’ wishes. The Court in Stuard v. Stuard (2016) 244 Cal. App.4th 768 discussed this very issue.
In Stuard the minor child’s paternal grandparents petitioned for visitation after the parents of the minor child had divorced. Upon filing of the petition, the court-appointed mediator reported a strong bond between the grandparents and the child and indicated that if the relationship was taken away, there would be “damage.” At trial, father objected citing that his parents (Petitioners) had made disparaging remarks about him to the child. Mother also testified and stated that she too had concerns about the grandparents undermining their parental authority. The trial court found, however, that the child had a pre-existing relationship with the grandparents that was encouraged by the parents and thus it was in the child’s best interests to continue that relationship thus awarding visitation. Father appealed, but the decision regarding visitation was affirmed. So what sort of relationship resulted in such a favorable decision for the grandparents where both parents were against the requested visitation? In Stuard, after retiring, paternal grandfather became the child’s primary caregiver. He picked up the child from preschool, cared for her after school and took care of the child while the parents were at work. When father and the child moved in with the grandparents after mother and father separated, grandfather helped ready the child for school, took her to and from school, attended school and other events, and cared for the child during father’s visitation time until mother picked up the child.
Here at Mello & Pickering, LLP with over 30 years combined experience, we know the ins and outs of the custody process and can make sure that your matter is resolved as easily and efficiently as possible. We have successfully assisted many clients in their request for grandparent visitationX