Summer is when grandparents most want time with the grandchildren. Family visits, a week at grandma's house, a trip that has been a tradition for years. When the parents are together, this happens informally. When the parents are separated or divorced, or when a grandparent's access has been cut off, the question becomes whether California law gives grandparents any enforceable right to visitation and, if so, how to get it.
The two findings a court must make
A grandparent can petition for visitation under Family Code section 3104. To grant it, the court must find two things. First, there must be a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child. Second, the court must balance the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority. Both findings are required. A grandparent who has had little contact with the child, or whose relationship with the child is not meaningfully bonded, will have difficulty meeting the first prong.
When the intact-family limit applies
Section 3104 generally does not allow a grandparent to petition while the child's parents are married, with some exceptions. A petition is permitted if the parents are living separately, if one parent has been absent for more than one month without the other parent knowing the absent parent's whereabouts, if one parent joins the grandparent's petition, if the child does not reside with either parent, or if the grandchild has been adopted by a stepparent. Outside these exceptions, the statute respects the intact family's autonomy.
If a family law case such as a dissolution is already pending, a grandparent may also seek reasonable visitation in that proceeding under Family Code section 3103, provided the court determines visitation is in the child's best interest and balances it against the parents' rights.
The presumptions that protect parents
California law gives real deference to fit parents. There is a rebuttable presumption that grandparent visitation is not in the child's best interest if both parents agree that the grandparent should not have visitation (Family Code section 3104, subdivision (e)). To overcome that presumption, the grandparent must present clear and convincing evidence that visitation is in the child's best interest. Even where only one parent objects, the court must still weigh the parent's authority against the child's interest. These presumptions reflect the constitutional principle, rooted in Troxel v. Granville (2000) 530 U.S. 57, that fit parents are presumed to act in their children's best interest.
A realistic path forward
For many families, the courtroom is not the best first stop. A grandparent who wants summer time is often better served by working through the willing parent, proposing a specific and reasonable schedule, and demonstrating flexibility. Mediation can help when communication has broken down. If litigation becomes necessary, the grandparent should be prepared to show a genuine, existing bond with the child and to explain why court-ordered visitation serves the child rather than simply the grandparent's desire. Courts are sympathetic to grandparents, but the statute requires more than affection.
Frequently asked questions
Can grandparents get court-ordered visitation in California? Yes, in defined situations. A grandparent may petition under Family Code section 3104, but the court must find a bonded preexisting relationship and then balance the child's interest against the parents' authority.
Can grandparents sue for visitation while the parents are happily married? Usually not. Section 3104 generally bars a petition during an intact marriage, with exceptions such as the parents living separately, a parent joining the petition, or the child not living with either parent.
What if both parents say no? There is a rebuttable presumption that visitation is not in the child's best interest when the parents agree the grandparent should not have it (Family Code section 3104, subdivision (e)). The grandparent would have to overcome that presumption.
Is there a difference if a divorce case is already going on? Yes. In a pending proceeding, a grandparent may request reasonable visitation under Family Code section 3103 if the court finds it is in the child's best interest.
This article is part of the Summer Travel and Parenting Time series.