Your son or daughter is going through a divorce, or perhaps the divorce is finally granted; what are your rights as a grandparent to continue seeing your grandchildren? Although your son or daughter could not make the marriage work, you have always maintained a great relationship with your grandchildren; what can you do? The Family Code provides that a court may award reasonable visitation rights to any other person having an interest in the child’s welfare, this includes grandparents.
San Jose Family Attorney’s attorneys advise that there are four circumstances in which a grandparent may petition for visitation:
1. A parent is deceased
2. A dissolution or other family law proceeding is pending in which child custody is already at issue
3. The parents are not married to one another (this includes circumstances in which divorce is already final)
4. The parents are married but are living separate and apart on a permanent or indefinite basis, and meet numerous other statutory criteria
Although the Code does not specifically indicate whether a grandparent seeking visitation rights under it must be joined as a party, Santa Clara family law attorneys advise that it would seem prudent for him or her to request to be joined. Grandparents should first file a motion to be joined to the original dissolution or paternity action between the mother and father. If there is no action to which the grandparent(s) can be joined, the grandparent would need to petition to Court to initiate a case against one or both parents as there is no other way for a grandparent to request orders for visitation under the Family Code. Local court rules should be addressed for how a grandparent would initiate a proceeding against one or both parents where there is no case number already existing between the parents.