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Protecting Grandparents’ Rights in a California Divorce

Posted on in Family Law

Santa Clara County grandparents' rights attorneyAfter a divorce, grandparents can provide an important point of stability in a child’s life. Grandparents can also provide emotional and even financial support to their grandchildren that divorced parents often cannot, due to the stress of divorce, the juggling of child care and custody, and the costs of maintaining two separate households. 

However, it can be difficult to maintain strong lines of communication between grandparents and grandchildren in the wake of a divorce. Fortunately, the California Family Code (sections 3100-3105) directly addresses the issue of grandparents’ rights to see their grandchildren.

When Grandparents May Request Visitation With Grandchildren

California law presumes that parents have the sole right to determine whether and when their children have contact with any grandparents. However, grandparents may ask a California court to award them visitation rights in certain circumstances:

  • When the grandchild’s parents are not married to each other.
  • When one parent has died.
  • When a divorce is pending, and a child custody agreement has not yet been finalized.
  • When the parents are separated on a permanent or indefinite basis.
  • When one parent’s whereabouts have been unknown for at least one month.
  • When one parent is incarcerated or institutionalized.
  • When one parent joins in the visitation request.
  • When the grandchild does not live with either parent.
  • When the grandchild has been adopted by a stepparent.

Necessary Conditions for Approval of Grandparent Visitation

In order to win visitation rights, grandparents must show that they already have a strong relationship or bond with the child and that visitation is in the best interests of the child. As part of their argument regarding a child’s best interests, grandparents are allowed to present evidence that the opposing parent is unfit. The court may require the grandparents to pay for transportation and other costs related to their visitation. If a child’s parents are in agreement that a grandparent should not be granted visitation rights, the court will not grant such rights. 

Alternatives to Court-Ordered Grandparent Visitation

Going to court is rarely the best way to solve family problems. When a parent and grandparent have a difficult relationship, mediation can be a better approach. This allows everyone to meet in a safe space to discuss their respective needs and concerns, with an objective third-party mediator helping to guide them toward an agreement that is in the best interests of the grandchildren. 

A divorcing couple may want to preempt future disagreements by directly addressing grandparent visitation in their marital settlement agreement. It can be helpful to discuss this subject during the course of any divorce negotiation or mediation process, particularly when the parents and grandparents live far apart. This way, as the divorcing couple is setting up their custody and parenting time plan, they can allot some time specifically for visiting grandparents or other extended family members.

Consult a Los Gatos Divorce and Visitation Lawyer 

An experienced Los Gatos, CA family law attorney can help you ensure that your children will maintain contact with important relatives such as grandparents after your divorce, especially if you will not have primary custody. Attorney Benita Ventresca has helped many families solve divorce and visitation issues through mediation. Call the Law Offices of Benita Ventresca at 408-395-8822 for a free initial consultation.


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Los Gatos, CA 95030

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