Do Grandparents Have Rights When Their Grandchild’s Parents Divorce?

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The relationship between grandparent and grandchild can be among life’s most special, close, and rewarding bonds. Grandparents are often a tremendous source of fun and surprises, love and affection, support and comfort—and happy memories that will be treasured forever.

Today, grandparents are often integral to a child’s upbringing in more than emotional ways. Although the research is somewhat sparse, studies show that about 10% of grandparents in the U.S. live in a household with a grandchild, up from 7% in the early 1990s, and approximately one-third of those grandparents are primary caregivers.

Among the many complex and painful aspects of a divorce is its impact on the grandparent-grandchild connection. It’s an issue that doesn’t get a lot of focus—but grandparents have a great deal at stake when their adult child’s marriage ends. The reorganization of the nuclear family can also disrupt these meaningful extended family relationships at a critical time. As a grandparent, you may have questions about your rights to see and spend time with your beloved grandchild.

Understanding Grandparents Rights

Unlike parental rights, which the Supreme Court has said are Constitutional—grandparents’ rights are still evolving.

The issue largely hinges on a landmark case, Troxel vs. Granville (2000). Tommie Granville and Brad Troxel, of Washington State, had two daughters together before they ended their relationship. Two years later, Troxel died. His parents, Jenifer and Gary Troxel were involved in the lives of their granddaughters; after their son’s death, they petitioned the court for visitation rights. Although Granville did not object to her deceased ex’s parents seeing the girls, she disagreed with the amount of time they were requesting.

The Washington Superior Court granted Troxel’s petition, based on a state law that gave “any person” the right to petition for visitation “at any time” and authorized the state superior courts to grant visitation rights if it served the child’s best interest.

However, the judgment was subsequently overturned by the Washington Court of Appeals; the case then made its way through the Washington Supreme Court and to the U.S. Supreme Court, which ruled that the statute used in the original ruling was too broad and interfered with the custodial parent’s Constitutional rights. The 14th Amendment, the Supreme Court held, “protects the fundamental right of parents to direct the care, upbringing, and education of their children.”

Today, although all 50 states have some form of grandparent visitation statute, the issue of grandparent’s rights is an ongoing concern across the country and in California.

In California, allowing grandparents to spend time with their grandchildren generally lies with the parents. Grandparents have no automatic rights to visitation. However, the law does allow grandparents to petition for visitation in several circumstances, such as when the parents are unmarried or divorced, when one parent has died, or if the child is not living with either parent.

When grandparents seek visitation, the court will look at the unique details of the case. Under California Family Code §1300-3105, a judge will generally grant reasonable requests for visitation if:

  • The grandparents provide convincing evidence that they have a preexisting relationship with the child and that maintaining that relationship is in the child’s best interests;
  • The benefit of the child spending time with the grandparents is balanced against the unique weight of the parents’ fundamental legal authority to make child-rearing decisions.
  • However, it’s essential to know that what defines “reasonable” visitation is at the court’s discretion.

In most cases, grandparents cannot petition for visitation if the child’s parents are legally married; however, there may be exceptions for extenuating circumstances, such as when a parent is institutionalized, incarcerated, or their whereabouts unknown for at least one month, or if the parents are living apart permanently or indefinitely.

If a family law case is already open between the grandchild’s parents, you may join the case to request visitation rights. If there’s no claim, you must begin your case with the family court by petitioning for grandparent visitation rights. Mediation can often resolve these issues, and a judge will generally order mediation before proceeding with an order.

Grandparent visitation is a complex area of the law. If you are a grandparent seeking visitation with a grandchild after their parents’ divorce, speaking with an experienced family attorney at SFLG is essential. We can help you understand your rights, navigate your situation, and present the most robust case for maintaining the grandparent-grandchild relationship.

By Debra Schoenberg

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