Grandparents
Family Code §3102 authorizes parents, siblings and grandparents of other children of a deceased person to request visitation with the deceased person's children. The court must making a finding of best interest for the visitation and in granting visitation must consider the amount of personal contact between the person and the child before the application for the visitation order.
This provision specifically does not apply if the child has been adopted by a person other than a stepparent or grandparent of the child. Any visitation order would likewise terminate if such an adoption occurs.
Per Family Code §3103 grandparents may seek visitation in any custody proceeding. The court must find that such visitation by the grandparent is in the best interest of the child. There is a rebuttable presumption affecting the burden of proof that visitation by grandparents is not in the child's best interests if both parents agree that the grandparent should not have visitation.
Per Family Code §3104 Grandparents may bring an action themselves requesting visitation with their grandchildren. The court may order visitation if it finds that it is in the child's best interests, that there is a preexisting relationship between the child and the grandparent. The court must balance the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.
A petition under this section can not be filed where the parents are married, unless one of the following exists:
- The parents are currently living separate and apart.
- One of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse.
- One of the parents joins in the petition with the grandparents.
- The child is not residing with either parent.
Stepparents
A stepparent may obtain visitation if the court finds that it would be in the child's best interests. The court cannot make an award of custody, it is specifically limited to visitation requests. In re Marriage of Lewis and Goetz (1988) 203 Cal. App. 3d 514, 250 Cal. Rptr. 30.
A stepparent is defined as a person who is a party to the marriage that is subject of the proceeding, with respect to the minor child of the other party to the marriage. Thus, the venue for visitation is within the stepparent and the parent's dissolution action or DVPA action. The court may not order visitation which would conflict with the right of custody or visitation of a birth parent who is not a party to the proceeding.
Gay and Lesbian Partners
The court does not have jurisdiction to grant custody or visitation rights to the child's nonbiological lesbian or gay parent. This is true regardless of the child's existing "parental" relationship with the nonbiological parent. In Curiale v. Reagan (1990) 222 Cal. App. 3d 1597, 272 Cal. Rptr. 520, West v. Superior Court (1997) 59 Cal. App. 4th 302, 69 Cal. Rptr. 2d,
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