The Right to Visit Grandchildren

Grandparents have legal rights too.

At least that is the trend in many states, including California, where laws enable grandparents in certain circumstances to obtain legal visitation rights to see their grandchildren.

But a right is one thing, and a remedy for that right is another. In other words, even if you think you have a right, you must have a way to make sure that you can pursue that right in a court of law.

And in the case of grandparents, the right to visit, which is granted by statute in California, is fairly limited. Yes, there is official legal language that says that the Superior Court can award reasonable visitation rights to a grandparent. But there is no specific provision that allows a grandparent to bring a lawsuit at any time seeking such rights.

In essence, grandparents have the right to pursue legal visitation only in instances when the grandchild’s parents are seeking a divorce or when one of the parents dies. In juvenile court proceedings, when a child is being removed from the custody of his parents, the court may also consider whether it would be in the best interest of the child to award grandparent visitation.

Under a state law passed in 1983, grandparents have the right to join in the divorce cases of their children and petition the court for visitation rights. The grandparents may hire their own attorneys and appear in court, right along with the husband and wife.

If the parents object to the visitation, the law establishes a “rebuttable presumption” that they are correct. That means that unless the grandparents can show specifically that such visitation will be in the best interest of the child, and overcome the presumption, the court is told to assume that their visitation is not in the child’s best interest, and deny it.

The law in California does not allow grandparents to force visitation when the mother and father are alive and happily married. However, there is legislation pending in many states to broaden the grandparent visitation right, and a New York case now pending will determine whether such visitation can be granted over the parents’ objections in that state.

This means that a vast number of grandparents, those whose children are not divorced, have no legal means to assert a right to visit their grandchildren. Disputes between married parents and grandparents are simply not candidates for resolution in the court system. (The death of a mother or father of a child changes the legal picture.)

Legislation could change that, of course, and broaden these rights, but in the meantime, family counseling, mediation and negotiation will be the best way to improve interaction between grandparent and grandchild, not lawsuits.

Klein is an attorney and president of The Times Valley and Ventura County Editions. Brown is professor of law emeritus at USC and chairman of the board for the National Center for Preventive Law. They cannot answer mail personally but will respond in this column to questions of general interest about law. Do not telephone. Write to Jeffrey S. Klein, The Times, 9211 Oakdale Ave. Chatsworth, Calif. 91311.