THURMAN'S TIPS

Family Code Section 3104 was revised effective January 1, 2015 to add a provision for grandparent custody/visitation where a parent (i.e., their son or daughter) is incarcerated and the other parent objects to regular contact.

Section 3104 and section 3103 appear to be extremely similar, and therefore confusing as to which applies to a particular grandparent custody application. Generally speaking, section 3104 applies to situations where there is no divorce or custody proceeding already pending between the children's parents. For instance, the 2015 amendments now allow grandparents to seek custody of children who have a parent in jail but possibly that person's parent hopes to get custody or visitation with his or her child, but neither has filed a proceeding.

Section 3103 addresses grandparent visitation rights during an already pending proceeding between parents (i.e., a divorce), where the grandparents seek to be joined as parties in the litigation between the parents who are children of the applicants.

What must be established is far more detailed in a 3104 application than what appears to be required under section 3103.

If you are involved or plan to seek to be involved in either situation, be sure to read Cal.Rules of Court, Rule 5.24 which discusses "mandatory" and "permissive" joinders and what proof must preliminarily be shown. Arguably, Rule 5.24 only applies to Section 3104 applications.

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CALIFORNIA FAMILY CODE

CUSTODY OF CHILDREN

RIGHT TO CUSTODY OF MINOR CHILD

VISITATION RIGHTS

Family Code Section 3104

(a) On petition to the court by a grandparent of a minor child, the court may grant reasonable visitation rights to the grandparent if the court does both of the following:

(1) Finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child.

(2) Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.

(b) A petition for visitation under this section shall not be filed while the natural or adoptive parents are married, unless one or more of the following circumstances exist:

(1) The parents are currently living separately and apart on a permanent or indefinite basis.

(2) One of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse.

(3) One of the parents joins in the petition with the grandparents.

(4) The child is not residing with either parent.

(5) The child has been adopted by a stepparent.

(6) One of the parents is incarcerated or involuntarily institutionalized.

At any time that a change of circumstances occurs such that none of these circumstances exist, the parent or parents may move the court to terminate grandparental visitation and the court shall grant the termination.

(c) The petitioner shall give notice of the petition to each of the parents of the child, any stepparent, and any person who has physical custody of the child, by personal service pursuant to Section 415.10 of the Code of Civil Procedure.

(d) If a protective order as defined in Section 6218 has been directed to the grandparent during the pendency of the proceeding, the court shall consider whether the best interest of the child requires that any visitation by that grandparent should be denied.

(e) There is a rebuttable presumption that the visitation of a grandparent is not in the best interest of a minor child if the natural or adoptive parents agree that the grandparent should not be granted visitation rights.

(f) There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the parent who has been awarded sole legal and physical custody of the child in another proceeding, or the parent with whom the child resides if there is currently no operative custody order objects to visitation by the grandparent.

(g) Visitation rights may not be ordered under this section if that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding.

(h) Visitation ordered pursuant to this section shall not create a basis for or against a change of residence of the child, but shall be one of the factors for the court to consider in ordering a change of residence.

(i) When a court orders grandparental visitation pursuant to this section, the court in its discretion may, based upon the relevant circumstances of the case:

(1) Allocate the percentage of grandparental visitation between the parents for purposes of the calculation of child support pursuant to the statewide uniform guideline (Article 2 (commencing with Section 4050) of Chapter 2 of Part 2 of Division 9).

(2) Notwithstanding Sections 3930 and 3951, order a parent or grandparent to pay to the other, an amount for the support of the child or grandchild. For purposes of this paragraph, "support" means costs related to visitation such as any of the following:

(A) Transportation.

(B) Provision of basic expenses for the child or grandchild, such as medical expenses, day care costs, and other necessities.

(j) As used in this section, "birth parent" means "birth parent" as defined in Section 8512.