California Family Code section 3104 lays out several requirements. First, there must be a preexisting relationship between the grandparent(s) and child which created a bond between them and visitation would be in the best interests of the child. Second, the court must balance the interests of the child with parental authority. This section potentially clashes with due process and constitutional concerns. See Troxel v Granville, 530 US 57 (2000).
If the natural or adoptive parents are married the grandparents' petition may have some roadblocks in 3104. The default rule is that the petition for visitation will not be considered if the parents are married unless one of the following five conditions exist.
(b)(1) The parents are currently living separately and apart on a permanent or indefinite basis.
I did some research in the legislative history to find out what "permanent" or indefinite means. Unfortunately the Assembly Committee docs don’t define or give any guidance for the use of the terms “permanent” and “indefinite.” This language is included without explanation in the earliest legislative history I could find, but is full of broad sweeping language about the rights and interests of grandparents.
(b)(2) One of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse.
Again, I did some research in the legislative history about this provision. The issue I asked is whether the (b)(2) means that the parent has to be absent for more than one month currently (i.e. at the time of the action) or the parent is gone for more than one month and has now returned. The concern from the Assembly Committee that can be tied to the parent’s absence is the concern of negligence of the parent, but is somewhat of a stretch:
“The problem of drug/alcohol addicted parents who are neglecting their children is rampant and is cited as a basis for both this bill and SB 592 (Russell), which creates a new category of legal custody called a "relative caregiver." Both of these bills attempt to bolster the legal rights of the grandparents who are doing the real caregiving and who may be the only stabilizing factor in the lives of the children involved. However, by providing a legal band-aid of visitation or a caregivership for a problem that is a gaping wound, the law may be providing nothing more than a smokescreen behind which the negligent parent can continue in his or her neglectful ways. This can actually act to the detriment of the child who suffers from a lack of any competent adult with complete authority and control. This increases, not decreases, the instability and insecurity in a child's life.” CA Bill Analysis, S.B. 306 7/14/1993.
The other 3 circumstances require less explanation. (b)(3) One of the parents joins in the petition with the grandparents, (b)(4) The child is not residing with either parent, and (b)(5) The child has been adopted by a stepparent. It should be noted that, "At any time that a change of circumstances occurs such that none of these circumstances exist, the parent or parents may move the
court to terminate grandparental visitation and the court shall grant the termination.
Just a thought…Another way to look at this particular provision is by looking at the 3104 itself where it allows for the parent or parents to move the court to terminate grandparental visitation if one of the circumstances in (b)(1)-(5) change. If (b)(2) means that the parent was gone for more than a month and the other parent not knowing the whereabouts, but now the parents are back together, it is not clear how there could be a “change in circumstances” possible under this scenario. In other words, if the parents are back together and the event already occurred where one parent leaves for more than a month, it is impossible to change. Thus, it can be inferred that the parent would have to be gone for more than a month currently, otherwise the change in circumstances provision would be inapplicable and useless to (b)(2).
I also looked at Lopez v. Martinez, 85 Cal.App. 4th 279 (2000) which much of the reasoning can be questioned since the 2006 amendment to 3104 adding (b)(5) possibly abrogating Lopez. However, there is some good discussion about legislative intent and public policy behind 3104. Lopez says that the reason 3104 was enacted was so that grandparents were not limited to visitation of a marital action between the child’s parents. The overarching concern or “primary impetus” being the best interest of the child trumps the interests of the grandparents. Some policy reasons generally: (1) gives great deference to the integrity of the family unit, and (2) recognizes importance of family ties and the value of the grandparent-grandchild relationship. Lopez says the family unit must be already “disrupted” in some way before even a grandparent may petition the court for visitation, which is in reference to (b)(1)-(4) as (b)(5) did not exist at this point in time. Disruption as a description might be a fairly obvious description of the limitations in (b), but I thought it was worth mentioning. A few law review articles also characterize the limitations in (b) as non-legal disruption of the marital relationship has taken place. California happens to be a statute that is “closed-ended” meaning that whether the parents are intact will determine whether the grandparents get visitation rights, whereas other states have an “open-ended” statutes which allow visitation regardless of marital status.
Fenn v. Sherriff, 109 Cal. App. 4th 1466 (2003) also has a good discussion mostly echoing the discussion of legislative intent in Lopez. To note, immediately following the legislative intent discussion, Fenn states on pg. 1476 of the opinion that “courts have no power to award grandparent visitation over the objection of both parents living together in a family unit under 3104.” (CF Harris, where a rebuttable presumption is created) Albeit, this is a case where the father tried and failed to limit a 3102 action through the use of the limitations in 3104(b).
The other potential roadblocks are the rebuttable presumptions created by the 3104. There is a rebuttable presumption created when the natural or adoptive parents agree that the grandparent should not be granted visitation. Also, a second rebuttable presumption is created if the parent with sole custody objects to the visitation.
As you can see Grandparent visitation is a difficult proposition. This makes sense because the courts do not want to interfere with parental rights. However, if there are major problems in the family and the visitation is in the best interest of the child the statute is workable.
If you have questions about grandparent visitation it is best that you discuss this with a California Family Law Attorney.
Hope this helps.
If you need assistance with your family law case please view my website at www.lawofficeofbarrydwitt.com
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