AB 1628, as introduced, Fox. Visitation rights: grandparent rights.
Existing law provides that a grandparent may petition the court for visitation rights. The court may grant visitation if the court finds that the grandparent and grandchild have a preexisting relationship that has engendered a bond such that granting the grandparent visitation is in the best interest of the child and the court balances the interest of the child in having visitation with the grandparent against the parents’ right to exercise their parental authority, subject to specified exceptions. Existing law prohibits a grandparent from filing a petition for visitation while the natural or adoptive parents are married, unless one or more of several circumstances are present, including that the child is not residing with either parent.
This bill would additionally permit a grandparent to file a petition for visitation while the natural or adoptive parents are married if one of the parents is incarcerated or involuntarily institutionalized.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 3104 of the Family Code is amended to
2read:
(a) On petition to the court by a grandparent of a minor
4child, the court may grant reasonable visitation rights to the
5grandparent if the court does both of the following:
6(1) Finds that there is a preexisting relationship between the
7grandparent and the grandchild that has engendered a bond such
8that visitation is in the best interest of the child.
9(2) Balances the interest of the child in having visitation with
10the grandparent against the right of the parents to exercise their
11parental authority.
12(b) A petition for visitation under this sectionbegin delete mayend deletebegin insert
shallend insert
not be
13filed while the natural or adoptive parents are married, unless one
14or more of the following circumstances exist:
15(1) The parents are currently living separately and apart on a
16permanent or indefinite basis.
17(2) One of the parents has been absent for more than one month
18without the other spouse knowing the whereabouts of the absent
19spouse.
20(3) One of the parents joins in the petition with the grandparents.
21(4) The child is not residing with either parent.
22(5) The child has been adopted by a stepparent.
begin insert
23(6) One of the
parents is incarcerated or involuntarily
24institutionalized.
25At any time that a change of circumstances occurs such that none
26of these circumstances exist, the parent or parents may move the
27court to terminate grandparental visitation and the court shall grant
28the termination.
29(c) The petitioner shall give notice of the petition to each of the
30parents of the child, any stepparent, and any person who has
31physical custody of the child, by personal service pursuant to
32Section 415.10 of the Code of Civil Procedure.
33(d) If a protective order as defined in Section 6218 has been
34directed to the grandparent during the pendency of the proceeding,
35the court shall consider whether the best interest of the child
36requires that any visitation by that grandparent should be denied.
37(e) There is a rebuttable presumption that the visitation of a
38grandparent is not in the best interest of a minor child if the natural
P3 1or adoptive parents agree that the grandparent should not be granted
2visitation rights.
3(f) There is a rebuttable presumption affecting the burden of
4proof that the visitation of a grandparent is not in the best interest
5of a minor child if the parent who has been awarded sole legal and
6physical custody of the child in another proceeding, or the parent
7with whom the child resides if there is currently no operative
8custody order objects to visitation by the grandparent.
9(g) Visitation rights may not be ordered under this section if
10that would conflict with a right of custody or visitation of a birth
11parent who is not a party to the proceeding.
12(h) Visitation ordered pursuant to this section shall not create
13a basis for or against a change of residence of the child, but shall
14be one of the factors for the court to consider in ordering a change
15of residence.
16(i) When a court orders grandparental visitation pursuant to this
17section, the court in its discretion may, based upon the relevant
18circumstances of the case:
19(1) Allocate the percentage of grandparental visitation between
20the parents for purposes of the calculation of child support pursuant
21to the statewide uniform guideline (Article 2 (commencing with
22Section 4050) of Chapter 2 of Part 2 of Division 9).
23(2) Notwithstanding Sections 3930 and 3951, order a parent or
24grandparent to pay to the other, an amount for the support of the
25child or
grandchild. For purposes of this paragraph, “support”
26means costs related to visitation such as any of the following:
27(A) Transportation.
28(B) Provision of basic expenses for the child or grandchild, such
29as medical expenses, day care costs, and other necessities.
30(j) As used in this section, “birth parent” means “birth parent”
31as defined in Section 8512.
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