Grandparent Visitation Rights: A Distinction in Dependency vs. Non-Dependency Cases


On August 7, 2014, the Court of Appeal of the State of California, Second Appellate District, District Eight, deciding the matter of In re J.T., a Person Coming Under the Juvenile Court Law, released a decision that adds additional clarification to grandparents wishing to exercise periods of visitation with their grandchildren. It is important to note, however, that this case only applies to dependency cases, specifically, those cases that are before Department of Children and Family Services Courts, and not Family Law Courts.

To offer a brief procedural perspective, Family Code section 2104, which governs family law courts, provides in relevant part a section on grandparent's rights. The court can grant visitation rights to the petitioning grandparent(s) if the court proceeds to do both of the following things:

  1. Discovers that there is not only a preexisting bond between the grandchild and grandparent, but that maintaining their relationship would be in the best interest of the child.
  2. Balances out the best interests of the child and their relationship with their grandparent, with the authority of the parents involved.

Even with this being said, if the parent who has sole physical and legal custody or the parent that the child lives with under a no operative custody order objects in any way to visitation from the grandparents, this can override the court granting visitation rights.

In the J.T. case, the mother asserted that allowing the grandparent visitation infringed on the mother's right to make decisions concerning the care, custody, and control of her child, citing Troxel v. Granville (2000) 530 U.S. 57 . In Troxel, the United States Supreme Court considered the constitutionality of a Washington state statute that permitted "any person" to petition a superior court for visitation with a minor at any time, and authorized the court to grant visitation rights whenever doing so served the best interests of the child. Ultimately, the Supreme Court found this law an unconstitutional infringement of the parent's fundamental right to make decisions concerning the care, custody, and control the a parent's child.

However, the Court in J.T. noted "while grandparents' rights to visitation are governed by Family Code provisions in a family law matter, nothing in Family Code section 3104 indicates it similarly governs visitation in a dependency context." The J.T. Court further noted, "Troxel does not support mother's contentions here. Unlike a parent in a family law proceeding, mother did not have the benefit of a presumption of parental fitness. She was before the dependency court precisely because of a substantiated lack of fitness to raise J. T. Unlike family court, the presumption of parental fitness that underlies custody law in the family court…does not apply to dependence cases decided in the juvenile court."

The Impact

Simply stated, if you are a grandparent seeking visitation with a grandchild and the matter is not in the dependency court, you will need to ensure that you can meet the dual prong requirement of California Family Code section 3104; however, if the matter is before the dependency court, as many grandparent visitation cases are, the J.T. Court appears to take the position that issuing grandparent visitation does not unconstitutional infringe on a mother's right to make decisions regarding the care, custody, and control of a minor; accordingly, the moving grandparent need only satisfy a showing that visitation between grandparent and grandchild is in the grandchild's best interests.

If you have any questions regarding divorce, child custody, child support, or questions regarding the grandparent visitation, please call Eric Martinelli with the Martinelli Law Group for a free consultation.