Attorney Diane Itzenhauser is currently on an indefinite leave of absence



In California, a grandparent’s visitation proceeding may be established by joinder in the parents’ domestic relations status action (divorce, legal separation or uniform parentage action) or by an independent action. (Family Code §§ 3103, 3104)

In a custody proceeding, California law confers discretion on the court to grant “reasonable visitation” rights “to any other person [a nonparent] having an interest in the welfare of the child.” [Family Code § 3100(a)] This general authority is supplemented by other statutes granting authority to award nonparent visitation rights in specific circumstances subject, however, to constitutional limitations. Nonparent visitation rights in a case contested by a parent may constitutionally be granted only if, in applying the state statute, the trial court gives a presumption of validity or at least special weight to the parent’s decision that the visitation would not be in the child’s best interest. Courts may not disregard and overturn a “fit” custodial parent’s visitation decision whenever a third party affected by the decision files a visitation petition. [Troxel v. Granville, supra, 530 US at 67-68, 120 S.Ct. at 2061; see Punsly v. Ho, supra, 87 CA4th at 1106-1107, 105 CR2d at 144]

By the same token, at least with regard to grandparents seeking visitation, parents’ due process right to make decisions concerning their children’s care, custody and control does not necessarily preclude a court from granting the nonparent visitation over the objection of a “fit” parent or parents. “The decision of fit parents regarding grandparent visitation is entitled to special weight, but not necessarily immunity from judicial review.” [Fenn v. Sherriff (2003) 109 CA4th 1466, 1484-1485, 1 CR3d 185, 200; Rich v. Thatcher (2011) 200 CA4th 1176, 1178, 132 CR3d 897, 899. Moreover, no authority to date holds that an order for grandparent visitation that is supported by one parent infringes upon the parental rights of the other parent. [Marriage of Harris (2004) 34 C4th 210, 227, 229-230, 17 CR3d 842, 856, 858]. The “bottom line” is that the “fundamental parenting right” is not absolute and, therefore, these cases generally cannot (if ever) be decided as a matter of law. An evidentiary hearing is required to determine, on a fully-developed evidentiary record, whether the granting of nonparent visitation in a case contested by a parent or parents would unconstitutionally infringe on the parents’ due process rights. [Fenn v. Sherriff, supra, 109 CA4th at 1485, 1487, 1 CR3d at 200, 201]

At the Law Office of Diane M. Itzenhauser, APC, we provide experienced representation in a broad range of family law matters, including those pertaining to grandparent visitation. Contact our law firm today at 805-544-2323 to discuss your case with an experienced San Luis Obispo family law lawyer.