Broken Ties: Divorce and Grandchildren


Margaret A.M. Heine

is the principal counsel at Heine Law Group in Fullerton, California. She is licensed in California and Washington and has authority to practice before the Supreme Court of the United States and the United States Court of International Trade.

Her practice includes estate planning, wills, trusts, and probate as well as business, real estate, and civil litigation. Email: nbylegas@gmail.com or visit company website www.margaretamheine.com.

Broken Ties: Divorce and Grandchildren

“Grandparents, like heroes, are as necessary to a child’s growth as vitamins.” – Joyce Allston

Ever been in a room of grown women fawning and bragging about their grandchildren? There they are comparing the best pictures, selfies, and oohs and aahs over the grandchildren and how adorable the mini-me’s look.  If so, then you know there is no one more fierce and protective than a grandparent.  What happens when your children no longer choose to stay married?  When there is a battle over custody and visitation between the parents, not to mention the grandparents – who wins and who loses?

Generally, you will never hear it said that children are the winners in any divorce situation.  A bad family home life is terrible for everyone involved.  When the parents decide they cannot stand each other or that they want to hurt each other, the children are occasionally the weapons in that war.  Where does that leave grandparents?

In many instances, the grandparents have been primary babysitters, support staff for sports or school activities, mommy and daddy date nights or weekend get-aways.  Grandparents also find themselves providing housing for the children and grandchildren when things go south or there is a lost job or when things just get tight.  Grandparents and grandchildren are bonded in a special and enduring way.

Divorce can rip this relationship asunder very quickly.  The Court recognized as far back as the 1970’s that grandparents have a very important function in a grandchild’s life, and that bond should be protected.  (see. Reeves v. Bailey (1975) 53 CalApp3 1019) It has been left to the states to determine what rights are granted to a grandparent when the grandchildren’s parents divorce or die.  It has been important to balance the rights of grandparents with that of the parents as the parents are solely responsible for the raising of their children. (see Troxel v. Granville 530 US 57)  Currently, all 50 states have some statute addressing grandparent visitation rights with their grandchildren.

In California, these rights are described in California Family Code Sections 3100-3105.  The code provides rights to grandparents when there is a divorce or the death of a parent.  Unfortunately, in Ed H v. Ashley, C in 2017 the 4th District Court of California had found that great grandparents do not have the same rights as grandparents, and cannot ask the court for visitation rights.  So, these rights are specifically for protecting the grandparent-grandchild relationship.

Family Code Sections 3100-3105, set out that visitation rights are available to a grandparent when there is 1)  a pre-existing relationship with the grandchild, an “engendered bond”, it is in the best interest of the grandchild, and 2) that there is a balance of rights between the parents to make decisions about their children and their parental rights.

The Code generally sets forth that if the parents are married and living together, then there is no right to grandparent visitation rights unless one of the parents agrees that grandparent visitation is acceptable.  So, if you are estranged from the parents of the grandchildren, the court most likely will not interfere with the parent’s judgment and control over the children.  If, however, one of the parents has died, is incarcerated, the parents are not raising the child (child not living with them) or a parent’s whereabouts are unknown, then the court can make a finding regarding grandparent visitation.

A recent California case did conclude that if the grandchildren live out of state, most likely, the California courts will not have jurisdiction to order grandparent visitation.  So, any action for visitation would have to take place where the child is legally living. (See also In re Marriage of Harris 92 CalApp 4th 499)

Also, a California court if they have jurisdiction over the divorce, may adjust child support or order who has to bear the expenses of transportation, housing, medical, clothing of the children while they are in the custody of the grandparents.

Each court has either a family law facilitator or a family law self help center where a grandparent can get help with filing a petition or determining if there are any specific forms for requesting grandparent visitation.  This varies by court, so, check with your local court for assistance.

Generally, you may either petition for grandparent visitation by joining a current divorce, parentage, or child support case or even a domestic violence restraining order.  You would file a petition stating the reasons why you meet the criteria for visitation, the proposed visitation schedule, why this would be in the best interest of the grandchild, and establish the pre-existing relationship you have with the grandchild.  You would need to file a form called a Request for Order (Form FL-300), Form for Child Custody and Visitation (Form FL-311), and most likely a Declaration (Form MC-031).  You would then provide copies to the parents at least 3 ½ weeks before the hearing date.  This is called “Service”, and it is very specific as to what requirements need to be met.  Check with the self-help center or even on the California Courts website to get specific information.

As always, DO NOT CONSIDER this column as specific legal advice for anyone to rely on.  It is simply informational.  If you want to pursue a legal grandparent visitation order, you should seek advice of a lawyer, the family law facilitator at the local court, or the self-help center at the local court.

Court orders of this type may be subject to a court hearing or a trial.  The decision may be discretionary to the Judge to weigh whether grandparent visitation is in the best interest of the child.  The point is, if you are denied visitation with your grandchildren due to a divorce, you may have rights to keep and maintain the relationship you have with your grandchildren.

May you enjoy your grandchildren, and enjoy this Irish Blessing:  “Children are the rainbow of life. Grandchildren are the pot of gold.”

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