The United States Supreme Court has recognized that parents have a Constitutional right to visit their children in the case of divorce or separation and this rule is strictly enforced in California. However, what about those other "third persons" who also care for the child. Many times, grandparents and step parents have the same emotional ties to children as parents, and in many cases they have more. What rights do these third persons have to visit children they have cared for in the past and whom they love deeply.
California Law
Generally, California Courts have discretion to grant reasonable visitation rights to any other person, not a parent that has an interest in the welfare of the child. (Cal. Fam. Code §3100(a). This right, however, is limited by the parents' 14 amendment right to make decisions regarding the care, custody and control of their own children. In order for a Court to overturn the objection of a parent to non-parental visitation, the Court must first give special weight to the parent's objection and then make a finding that visitation is in the best interests of the child despite the parent's objection. The burden of proof is placed on the third party seeking visitation overcome the presumption of validity to a parent's objection to visitation.
US Supreme Court Case
The rule granting a parent's objection "special weight" or a "presumption of validity" based on a parent's 14th Amendment right was recognized by the US Supreme Court in the case of Troxel v. Granville, 530 US 57. In the case of Troxel v. Granville, the Court found that fit parents are given deference on decisions regarding with whom the child will associate. The Court ruled that a Washington State Law that only mandated that visitation orders should be ordered in the "best interest" of the child were unconstitutional if the parent's objection was not given special deference. While the Court left open the possibility that some third persons could obtain court-ordered visitation but put the burden of proof on the third persons to overcome a presumption of validity to the parent's objections.
Conclusion
There are thousands of grandparents, stepparents and others who simply love someone else's child like they were their own. However, the Supreme Court has determined that a parent has the Constitutional right to deny visitation to other third persons and have placed a high burden on those third persons to obtain a visitation order. The current state of the law does not mean that grandparents and step parents cannot seek visitation and in many cases they will be successful, it only means that this task will be more expensive and harder to achieve.
Disclaimer
Dena Bez is a licensed California Attorney whose practice focuses on family law including divorce, custody disputes, domestic partnership issues and small business counseling and representation.
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