- In our communities, it is very common to find grandfathers and grandmothers who have assumed the responsibility of caring for and raising their grandsons and granddaughters. The laws recognize the importance of grandmothers and grandfathers for their development.
- It is also recognized that when situations such as separations or divorces occur, breaking the relationship between the minor and his or her grandparents can cause emotional damage to both the grandfather or grandmother and the minor. For this reason, rights have been recognized that seek to protect this relationship.
- The main of these rights is the one that grandmothers and grandfathers have to relate to their grandsons and granddaughters. This right is maintained even if the minors were born out of wedlock, the parents have already divorced, are separated or one of the parents dies.
- According to the law, the parents or guardians of the minor who have parental authority or custody over it can decide with which person inside or outside the family unit their son or daughter is related.
- The Court may interfere with the exercise of this right when the existence of compelling interests is demonstrated by clear, robust and convincing evidence.
- As in all cases of minors, the Court will resolve according to what it understands is the best interest of the minor.
What happens if the court authorizes visitation rights?
- This right is not automatic . If a grandfather or grandmother wishes to petition to be related to his or her grandson or granddaughter in Court, he or she must file a Filial Relations Lawsuit. You can obtain the form prepared by the Judicial Branch for these purposes or in the Forms section of our page.
- If the Court authorizes grandparents visitation rights, the parents will determine the planning of the time, place and manner of authorized relationships.
What things does the Court take into consideration when determining visitation rights?
Among other things, the Court must take into consideration the following:
- If these relationships are important for the comprehensive development of the minor and
- if the minor has been in the temporary care of other people.
Normally, when two parents are married (or have custody), they have decision-making power over their child’s relationships with third parties, including grandparents. That means grandparents can’t request visitation if both parents (including their own child) forbid it. However, there are exceptions to this situation. A grandparent can apply for visitation rights when:
• A parent has died (Family Code 3102)
• A dissolution or other family law proceeding is pending in which child custody is in question (Family Code 3103)
• The parents are not married to each other, or the parents are married but living apart permanently or indefinitely, AND one of the parents has been absent for more than one month and the whereabouts are unknown, or one of the parents join the petition, or a stepparent has adopted their grandchild, or the child does not reside with either parent, or one of the parents is incarcerated or involuntarily institutionalized. (Family Code 3104)
• Parents no longer live together • Grandparents sue for visitation together with a parent
• The child does not live with their biological parents
The court will only grant visitation rights if the grandparent and grandchild have been previously bonded, especially when continued bonding is in the best interest of the child. Generally, the court will also consider whether the grandparent has been completely deprived of access to the grandparents with whom they have the required link. The grandfather has the burden to prove with clear and convincing evidence that the denial of visitation with the grandfather is not in the best interest of the child. Above all else, the best interest of her grandson is the highest priority of the court.
AFFIRMING THE RIGHTS OF GRANDPARENTS THROUGH MEDIATION
Mediation may also be a solution for you, instead of a petition filed in court. Mediation would allow you to develop a visitation agreement with your grandson’s guardians outside of court influence, allowing you to have a frank and open discussion. It is often an effective way to work out a legal solution without the emotional stress and strain of a trial. Our attorneys are highly trained mediators, with hundreds of hours of legal specialization in the art of negotiation and mediated resolutions. If you want a peaceful and cooperative solution to your case, hiring a mediation attorney could be the answer you are looking for.
CONTACT OUR SAN DIEGO FAMILY LAW ATTORNEYS To learn about your specific case, you’ll want to discuss it in a free consultation with a legal professional. Our firm, which includes board-certified family law experts and highly trained mediators, offers a one-hour consultation to help you get answers fast.
Call us at 619-577-4900 or contact us through our easy online form.
