The rights, if any, of grandparents to obtain Court-Ordered for visitation of their grandchildren is a heated issue in Family Court. Quite often the scenario is always the same; parents get divorced, one parent moves away and the grandparents fear they will never see their grandchild(ren) again. Courts have wrestled with the notions of autonomy, individual liberties, the best interests of the child, the Constitution and other important public policy concerns when deciding whether to grant Court-ordered visitation to grandparents.

A brief history of the pertinent case law on this issue helps to frame the problem faced by the Courts. In 2000, the United States Supreme Court decided the landmark case for grandparent and third-party visitation, Troxel v. Granville (2000) 530 U.S. 57. In that case the father had passed away, and the mother vehemently opposed visitation to the paternal grandparents. However, a Washington Family Court ordered visitation for the grandparents, and the mother appealed the ruling to the Supreme Court of Washington and then to the United States Supreme Court. The Supreme Court held that the Washington state statute providing that any person may petition the Court for visitation, which could be granted upon finding such visitation to be in the best interests of the child, violated the substantive due process rights of the biological parent(s). The Supreme Court opined that parents who are deemed fit to raise their own children have the sole ability to be responsible for the "care, custody and control" of those children. So, in essence, if the mother wanted to deny visitation to the grandparents, she was well within her constitutionally guaranteed rights to do so.

The Troxel case set a clear precedent rooted in the U.S. Constitution, however, state legislatures have fashioned statutes to get around what seems to be a clear directive. For example, California Family Code Section 3102 permits visitation by a deceased parent's children, siblings, parents, and grandparents if such visitation would be in the best interests of the child. Section 3103 permits a Court in specified proceedings involving the custody of a child to grant grandparent visitation. Finally, Section 3104 provides the benchmark for grandparent visitation. Section 3104 permits grandparents to actually petition the Court for visitation if either the parents are not married, the parents are currently living separately and apart on a permanent or indefinite basis, one of the parents has been absent for more than one month, one of the parents joins in the petition with the grandparents, the child is not residing with either parent or there is a preexisting relationship between the grandparents and the minor.

However, in response to Troxel, Section 3103 and Section 3104 contain a rebuttable presumption affecting the burden of proof that the visitation by a grandparent is not in the best interest of a minor child if the child's parents agree that the grandparent should not be granted visitation.

In the years following Troxel, the California Appellate Courts were barraged with appeals related to the above Family Code Sections, as all thought Troxel made those statutes per se unconstitutional. However, although some Courts ruled the statutes unconstitutional as applied in a particular case, none of the Sections were struck down as unconstitutional on its face. It seems that California Courts are quite willing to grant visitation to grandparents and other family members notwithstanding Troxel.

One such case was Marriage of Harris, (2004), 34 Cal. 4th 210, where a trial Court granted visitation to the paternal grandparents over the objection of the mother. The Supreme Court of California, although heavily divided on the issue, upheld the trial Court's ruling. The Court noted that this case was distinguishable from Troxel because the father, who retained parental rights and was deemed "fit," consented to grandparent visitation. The Court held that mother's constitutional rights, as framed in Troxel, were not violated and thus, the Order should stand.

It seems that California Courts are quite willing to grant visitation to grandparents in certain circumstances where the Court determines that visitation would be in the best interests of the minor. However, Courts would be hard pressed by the requirements of the U.S. Constitution to force parents to grant visitation to the grandparents when they are deemed fit by the Court, and neither of the parents consents to visitation. Courts value the rights guaranteed in Troxel too much to force grandparent visitation unless that visitation is necessary to achieve a very compelling interest.