48614882_xlAs a Sonoma family law attorney, I am often asked if grandparents and other relatives can request visitation during divorce proceedings.  The answer is yes.  Relatives can seek joinder, a process in which they “join” a divorce proceeding in order to establish a visitation schedule.  It sounds easy, but often it is not that simple.  As explained below, because parental Constitutional rights are involved, these bids for visitation are most likely to be successful when one of the parents supports visitation.  Relatives face an uphill battle if they seek visitation when neither parent is in favor of it.

California Family Code § 3100 (a) states that “reasonable visitation rights may be granted to any other person having an interest in the welfare of a child.”   Specific statutes delineate visitation rights for various persons, including grandparents (Family Code §§ 3103, 3104), former legal guardians (Family Code § 3105), stepparents (Family Code § 3101) and relatives of a deceased parent (Family Code § 3102).

While the statutes would seem to support broad visitation for relatives, the United States Supreme Court and California appellate courts have been clear that parental wishes are not easily dismissed.  This is the fascinating place where family law intersects with the personal freedoms protected by the Constitution.  The best interests of the child must be balanced with a parent’s right to determine the child’s care and associations.

This issue was addressed by the United States Supreme Court in Troxel v. Granville (2000) 50 U.S. 57.   In Troxel, the United States Supreme Court held that the Due Process Clause of the Constitution’s Fourteenth Amendment protects parents’ fundamental liberty interest in making decisions regarding the care, custody, and control of their children.  Fit parents, defined by the Supreme Court as those who “adequately care for their children,” are presumed to act in their children’s best interests.  Their decisions must be afforded “special weight” and they must be given deference when they choose to limit their children’s associations.  While a Court may order non-parental visitation, it may not substitute its own judgment for that of the parent.  Parental decisions where both parents agree are presumed correct.

Thus, the battles over non-parent visitation usually occur when one parent supports the visitation and the other does not.  Clearly, if both parents support visitation, it will occur without legal intervention.  If both parents oppose visitation, the relative faces the weighty task of explaining why the right of both parents to determine whom their child can associate with should be abrogated.  Quite simply, relatives resort to the courts when parents do not agree.  Thus, a relative seeking visitation requires competent and experienced legal representation.  If you are facing this situation, consult an attorney immediately, before custodial and visitation rights are finalized.