My parents are elderly - both 82 years old, and they have been
"forbidden" by my brother's wife to see their grandchild, my brother's
son, since the boy was an infant. The child, Julian, is now eight
years old. I've watched my parents suffer over the years because of
their frustrated desire to see this boy.
From my perspective and interpretation of the circumstances, my
brother's wife has been using her son as "ransom" against my parents
because they were not willing to pay for various of my brother's and
wife's expenses - for example, the purchase of a home, etc.
In other words, my brother's wife is being vindictive toward my
parents because of her unfulfilled expectations of them, and my brother
has pretty much gone along with her because of his not wanting to rock
the boat.
What I would like to know is if there is any way the legal system can
be used to request that my brother will be obligated to bring his son
to visit their grandparents?
Laws about grandparents' visitation rights vary from place to place.
Where does the child live (city/state/nation)?
Are the child's parents in an intact relationship?
My brother and his wife are married and living together in San
Francisco. The boy is living with them to the best of my knowledge.
I've also been restricted from visiting him as well, because of
association to my parents. Guilty by association, in other words.
This situation has hurt me, too, for obvious reasons and also because
I've loved and trusted my brother since we were children.
This is an anguishing situation without an easy remedy, as I am sure
you know. Google Answers is not a source of authoritative legal
advice, nor a substitute for the services of an attorney. I've
gathered some material that should give you some insight into the
situation, but please keep in mind that this is for informational
purposes only.
"APPLICABLE CALIFORNIA LAW ON GRANDPARENTS' RIGHTS:
Family Code sections 3102 through 3104 govern the custody and
visitation rights available to grandparents in California. Subject to
a number of procedural and factual requirements, a grandparent can
obtain a visitation order if such an order is 1) in the child's best
interest, 2) there is a pre-existing bond between the child and
grandparent that justifies visitation and 3) the child's interest in
visitation outweighs the parents' right to exercise parental
authority."
Burbank Law: Some Preliminary California Family Law Information
http://members.tripod.com/~tcotrel/advice.html
"California requires two prerequisite findings before granting
visitation rights to a grandparent. First, there must be a preexisting
relationship and bond between the grandparent and the grandchild and
second, the requested visitation must be in the best interest of the
child. If the prerequisites are found, the court must also balance the
interest of the child in having visitation with the grandparent
against the right of the parents to exercise their parental authority.
Family Code 3103 (a) (2).
These visitation orders cannot interfere with a nonparty birth
parent's visitation rights. Family Code 3104 (g).
California does not allow the grandparent to petition if the family is
still intact and the parents simply refuse to allow visitation."
Family Law Today: Grandparent Visitation
http://www.jprlawcorp.com/pages/grandparents.htm
"Grandparents are allowed to request visitation with their
grandchildren during the parents' marriage. The grandparents must give
notice of their action by personal service to the child's parents, any
step-parent and anyone who has custody of the child. The court can
grant visitation rights to the grandparents in these matters if (1)
the visitation order is in the child's best interest; (2) there is a
pre-existing bond between the child and the grandparents that
justifies visitation; and (3) the child's interest in visitation
outweighs the parents' right to exercise parental authority.
The court may only order grandparent visitation during the parents'
marriage if one or more of the following circumstances exist: (1) the
parents are living apart; (2) one parent is absent and his or her
whereabouts are unknown; (3) one parent joins in the grandparents'
petition; or (4) the child does not live with either parent. If the
court grants visitation to a grandparent, it must terminate the order
once none of these circumstances exist.
California law provides a rebuttable presumption that grandparent
visitation is not in a child's best interest if both parents agree
that the visitation should not be ordered. In addition, California law
also provides a rebuttable presumption that grandparent visitation is
not in a child's best interest if the parent who has sole legal and
physical custody of the child objects, or if the parent with whom the
child resides (in the absence of a custody order) objects."
Chain Younger Cohn & Stiles: Grandparent/Step-Parent Visitation
http://www.chainyounger.com/law_visitation.html
"By: chestho
Date: 9/28/2003 6:23:23 PM
Is there a law in the state of California that gives visitation rights
to grandparents?
re: grandparent rights to visitation
By: gemini47
Date: 9/28/2003 7:41:04 PM
Not exactly. There are provisions in the Family Code where a
grandparent can petition for visitation, however, 'there is a
rebuttable presumption that the visitation of a grandparent is not in
the best interest of a minor child' in most situations where the
parent or parents object. Consult local counsel."
PrairieLaw Messageboards: grandparent rights to visitation
http://www.prairielaw.com/messageboards/message.asp?channelId=0&subId=&mId=394374&mbId=84
Here you can read the exact wording of the applicable section of the
California Family Code:
"3104. (a) On petition to the court by a grandparent of a minor
child, the court may grant reasonable visitation rights to the
grandparent if the court does both of the following:
(1) Finds that there is a preexisting relationship between the
grandparent and the grandchild that has engendered a bond such that
visitation is in the best interest of the child.
(2) Balances the interest of the child in having visitation with
the grandparent against the right of the parents to exercise their
parental authority.
(b) A petition for visitation under this section may not be filed
while the natural or adoptive parents are married, unless one or more
of the following circumstances exist:
(1) The parents are currently living separately and apart on a
permanent or indefinite basis.
(2) One of the parents has been absent for more than one month
without the other spouse knowing the whereabouts of the absent spouse.
(3) One of the parents joins in the petition with the grandparents.
(4) The child is not residing with either parent.
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."
California Family Code, Section 3100-3104
http://www.leginfo.ca.gov/cgi-bin/waisgate?WAISdocID=37029522884+0+0+0&WAISaction=retrieve
So, to condense things to the most basic level, a California court may
order parents to permit visitation by a grandparent under these
circumstances:
- If the court finds that there is a pre-existing bond between the
grandparent and the child.
- If the child's parents are married, and both parents are living with
the child, the court may grant visitation rights to grandparents if
one of the parents joins in the petition with the grandparents.
As you have described this case, it seems that neither of these
circumstances exists. Since the lack of a pre-existing relationship is
not something that can be changed, it appears that the best chance for
the grandparents to have a chance of obtaining access to their
grandson is to sway the judgment of one of the parents (obviously,
your brother would be the parent most likely to change his views here,
since your sister-in-law is the source of the problem). If one parent
sides with the grandparents, the law will permit the court to consider
ordering visitation.
I strongly urge the grandparents to seek competent legal assistance in
this difficult matter. There are many attorneys in the San Francisco
area who practice family law. Here's a list that may help. Each of the
attorneys on the list has a profile that can be reached by clicking
"view profile." Some also offer links to the attorney's website. By
reading the profiles and viewing the websites, it's possible to get a
detailed overview of each attorney's capabilities.
FindLaw: San Francisco/California/Family Law
http://lawyers.findlaw.com/lawyer/lawyer_dir/search/jsp/stdSearch_process.jsp?target=FIRM&state=CA&city=San+Francisco&practice=FL24
Google search strategy:
Google Web Search: "third-party visitation" + "grandparents" + "california"
://www.google.com/search?hl=en&ie=UTF-8&oe=UTF-8&q=%22third-party+visitation%22+grandparents+california
Google Web Search: "california" + "law+" + "grandparents" + "visitation"
://www.google.com/search?hl=en&ie=UTF-8&oe=UTF-8&q=california+law+grandparents+visitation
Google Web Search: "california" + "family law" + "grandparents"
://www.google.com/search?hl=en&ie=UTF-8&oe=UTF-8&q=california+%22family+law%22+grandparents
I wish I'd had better news to report. I hope this is helpful. If
anything is unclear, or if a link doesn't work for you, please request
clarification; I'll gladly offer further assistance before you rate my
answer.
Best wishes,
pinkfreud
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