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Posted By DAM Firm | August 9 2016 | English

Article 16-33
¡No Se Deje!
When marriages end in divorce, the lives of the children are changed forever.  These changes often cause children to suffer severe emotional distress, fear, confusion and resentment.  And among the most painful results of a divorce is the disruption or termination of valued relationships with grandparents.  The law must provide a way to balance the rights of parents to decide who can visit their children with the rights of children and grandparents to continue to enjoy their important relationships.

The 14th amendment of the U. S. Constitution provides parents a fundamental right to make decisions about the care, custody and control of their children and their lives.  If a parent objects to visitation by a grandparent, the court may only grant visitation if it first starts with a presumption of validity of the parents’ decision that visitation is not in the child’s best interests.  This presumption is based on the belief that a fit parent will act in the child’s best interests.  This does not, however mean that a parents’ decision is not subject to judicial review.

In California, a court may grant reasonable visitation rights to a grandparent of a minor child if the court decides that such visitation is in the best interests of the child.  If the child’s parents both agree that a grandparent should not be given visitation rights, the court must deny visitation unless the grandparent can prove that visitation over the parents’ objection, is in the best interests of the child.  Grandparents requesting visitation rights must file a petition and prove that they have a pre-existing relationship with the grandchild that has created an emotional bond and that the continuation of that bond is in the best interests of the child.

Grandparent visitation will not be granted if the child’s parents are married unless:

  • The parents are separated and living apart permanently or indefinitely;
  • A parent’s whereabouts has been unknown to the other parent for more than 30 days;
  • One of the parents joins the grandparent in requesting the court to approve visitation;
  • The child is not living with the parents;
  • The child has been adopted by a stepparent.

Grandparent visitation based on any of the above circumstances can be terminated by one of the parents if the qualifying circumstances cease to exist.

The court may allocate the percentage of grandparent visitation between the parents in determining the amount of child support owed by them.  The court can order a parent or grandparent to pay the other for related costs of the visit including transportation, medical costs, day care and other necessities.

Every state has grandparent visitation laws but the rights and conditions vary greatly.  The national trend is to allow grandparents to visit their grandchildren when their parents have never married, have divorced or when one parent has died.  Parent rights groups have indicated that they may challenge the legal reasoning that gives grandparents more rights to visitation if the parents are not married.  ¡NO SE DEJE! ®  
Jess J. Araujo, Esq.

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