By Donald Schweitzer
The strength of grandparents’ bond with their grandchildren can make all the difference in the world to the development of children. Even the former mayor of New York, Rudy Giuliani agrees: “What children need most are the essentials that grandparents provide in abundance. They give unconditional love, kindness, patience, humor, comfort, lessons in life. And, most importantly, cookies.”
Despite the recognition of a grandparent’s important role within the family structure, during a divorce, grandparents, much like children of a divorce, get caught up in the middle of a custody battle. Sometimes grandparents find themselves having to beg to see their grandchildren and often face legal hurdles to obtain visitation rights.
Under California Family Law, there is a presumption that the visitation of a grandparent is not in the interest of a child if the parents agree that the grandparent should not be granted visitation rights. In other words, during a divorce, the grandparents’ wish to continue to be involved with their grandchildren are overshadowed by the parents’ wish. However, case law has shown time after time that when involved grandparents petition the family court for visitation rights, they are able to rebut this presumption and ultimately prevail.
Take for example a recent California decision* where the grandparents were extremely involved in their granddaughter’s life. The grandparents were present during her birth and were involved with her dropping off and picking up their granddaughter to/from preschool and watching her after school while the father and mother were at work. While the mother and father were still married and living together, the grandparents spent about twenty-five days per month looking after their granddaughter.
When the mother and father separated, the grandparents spent even more time with their granddaughter, especially after the father and child moved into their home.
Eventually the grandparents’ relationship soured with their son. When the father moved out of their home the grandparents were cut off from seeing their granddaughter entirely. In an effort to obtain visitation rights, the grandparents filed a petition. At the hearing and after the court took into consideration evidence of the strong bond between the grandparents and their granddaughter, the grandparents were granted overnight visits with her every week, a full weekend once a month, a full week during the summer, and overnight visits around Thanksgiving and Christmas.
The father appealed the trial court’s ruling but lost on appeal. In rendering the decision, the appellate court noted that, “[w]ith both regular and increasing contact between the grandparents and their grandchild, the parental authority that would sever the relation – without more – reciprocally and incrementally diminished.”
Based on this ruling we can see that grandparents who have strong bonds
with their grandchildren should not throw in the towel when one or both
of the parents attempt to cut them off from seeing their grandchildren.
In spite of the rebuttable presumption within the law that it is not in
the child’s best interest for grandparents to have visitation, this
presumption can be rebutted with a presentation of evidence demonstrating
the strong bond. After all, as another quote goes, “The reason grandchildren
and grandparents get along so well is that they have a common enemy.”
*Stuard v. Stuard