Grandparents play a crucial role in their grandchildren’s lives, offering love, wisdom, and support. However, when family conflicts arise—such as divorce, estrangement, or the death of a parent—grandparents may find themselves cut off from their grandchildren. Fortunately, California law provides a legal framework for grandparents seeking visitation rights.

Family Code Section 3100 – General Visitation Rights

California law prioritizes the best interests of the child when determining visitation. Family Code § 3100 states that a court may grant reasonable visitation rights to any person, including grandparents, if it is in the child’s best interest. However, grandparent visitation rights are more specifically addressed in Sections 3102–3105.

Family Code Section 3102 – When a Parent is Deceased

If one parent of a minor child has passed away, Family Code § 3102 allows grandparents (from the deceased parent’s side) to petition for visitation. The court may grant visitation if it serves the best interests of the child. However, if the surviving parent objects, the court must weigh the parental right to make decisions for their child against the grandparent’s claim.

Family Code Section 3103 – Grandparent Visitation in Divorce or Separation Cases

Under Family Code § 3103, a grandparent may request visitation when the child’s parents are going through a divorce, legal separation, or annulment. The San Diego Court can grant visitation if it finds:

1. A pre-existing relationship between the grandparent and grandchild that has “engendered a bond.”
2. Visitation is in the best interest of the child.
3. The parents’ rights to make decisions for their child are considered, creating a balance between parental authority and the child’s welfare.

Family Code Section 3104 – Grandparent Visitation When Parents Are Still Married

When both parents are still married and living together, grandparent visitation is much harder to obtain. Family Code § 3104 generally prohibits grandparents from seeking court-ordered visitation unless certain exceptions apply, including:

• The parents are living separately.
• One parent has been absent for at least a month.
• One parent supports the grandparent’s request for visitation.
• The child does not live with either parent.
• A stepparent has adopted the child.

If none of these exceptions apply, the court cannot grant visitation. Additionally, if both parents jointly oppose the visitation, the court must presume that visitation is not in the child’s best interest. The grandparent must provide compelling evidence to overcome this presumption.

Family Code Section 3105 – Visitation for Step-Grandparents

Step-grandparents, or those related to a child by marriage rather than blood or adoption, may also seek visitation under Family Code § 3105 if they can demonstrate a strong bond with the child and that visitation is in the child’s best interest.

Key California Cases on Grandparent Visitation

Several California Supreme Court and appellate cases have shaped grandparent visitation rights, particularly regarding the constitutional rights of parents.

Troxel v. Granville (2000) 530 U.S. 57 – U.S. Supreme Court Case

While not a California case, Troxel significantly influences grandparent visitation cases nationwide. The U.S. Supreme Court ruled that parents have a fundamental right to control their child’s upbringing, including deciding whether grandparents should have visitation. California courts apply this principle, requiring deference to parental decisions unless compelling reasons justify court intervention.

Zasueta v. Zasueta (2002) 102 Cal.App.4th 1242

This case reinforced the presumption in favor of a fit parent’s decision regarding grandparent visitation. The court emphasized that if a fit parent opposes visitation, the grandparent must provide clear evidence that denying visitation would harm the child’s well-being.

Fenn v. Sherriff (2003) 109 Cal.App.4th 1466

In Fenn, the court ruled that even if a grandparent has a strong bond with a grandchild, the court cannot grant visitation unless the legal standards under Family Code § 3104 are met. This case affirmed the need to balance a grandparent’s request with parental rights.

Hoag v. Diedjomahor (2011) 200 Cal.App.4th 1008

Here, the court held that a grandparent must prove actual harm to the child if visitation is denied. Simply showing that visitation would be beneficial is not enough. The case clarified the high burden of proof grandparents face in overcoming parental authority.

How to Petition for Grandparent Visitation in San Diego

If a grandparent wishes to seek visitation, the process generally includes:

1. Filing a Petition – The grandparent must file a petition in the family court where the child resides.
2. Notifying the Parents – Parents (and potentially other guardians) must be served notice of the petition.
3. Court Hearing – The grandparent must present evidence showing:
   • A pre-existing relationship with the child.
   • Visitation is in the best interest of the child.
   • Denial of visitation would cause harm to the child.
4. Balancing Parental Rights – The court will weigh the parents’ objections and may deny visitation if the parents present a unified stance against it.

Conclusion

Grandparents in San Diego have legal avenues to seek visitation, but the law strongly protects parental rights. Courts will grant visitation only if it is in the best interest of the child and does not overly interfere with a parent’s decision-making authority. Understanding Family Code Sections 3100–3105 and relevant case law can help grandparents navigate this complex legal landscape.

If you are considering filing for grandparent visitation, please reach out to Primus Family Law Group team of Certified Family Law Specialists who can help you assess your legal options and strengthen your case.