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Grandparent Visitation Rights Discussed In A California Family Law Case — Finberg V. Manset

GrandParentCases involving child custody and visitation rights happen on a regular basis in San Jose and California. The facts of these cases can be emotionally difficult especially because the interests of a child are involved.

Many times there are extended family members that will be affected by the outcome of a case. These family members may want to continue the relationship with the child and wish to protect their own visitation rights at the same time. California laws outline several limited cases where this can happen.

Recently, the 6th appellate district published a case, Finberg V. Manset, where grandparents tried to secure visitation rights to their grandchild when the parents denied them access.

Facts Of The Case

A child’s biological mother and father divorced. The paternal grandparents continued the relationship with the child and, at one time, were the primary caregivers. The mother remarried and her second husband adopted the child. The mother and adopted father complained about the paternal grandparents undermining their authority, and they discontinued all contact with the child, including filing a restraining order. The grandparents brought a petition to the California courts requesting visitation with the child. The trial court dismissed the request because Cal. Fam. Code, § 3104 (“§ 3104”) is unconstitutional and not supported by rational basis. The grandparents appealed.

Applicable Statutes And Laws

California Family Code, § 3104

§ 3104 outlines the circumstances where grandparents are allowed to request visitation rights. Grandparents cannot request visitation if a child’s natural or adoptive parents are married. However, § 3104 affords an exception when a child has been adopted by a step parent. Within the exception, the grandparents must show that a preexisting relationship existed and visitation is in the best interest of the child. If the parents do not think grandparent visitation is in the best interest of the child, the grandparents have to overcome a rebuttable presumption that visitation is not in the best interest of the child.

Constitutional Laws

Under the Equal Protection Clause, when a state’s classification of a group burdens a fundamental right, the courts will examine the interest of the state with a higher level of scrutiny than the normal rational basis. The Supreme Court of the United States has long recognized that parents have a fundamental right in making decisions about the care, custody, and management of their children.

Courts Ruling

Cal. Fam. Code, § 3104

The court asserted that § 3104 was written in response to Lopez v. Martinez. In Lopez v. Martinez, the paternal grandparents took in both the mother and her child when their son had become estranged. For several years, they helped care for the child. The mother remarried and cut off the child’s contact with the grandparents. When the grandparents sought visitation rights, the second husband adopted the child for the purpose of excluding them from visitation. The court at the time noted the injustice of discontinuing visitation but were required to follow § 3104. In response to the case, the California legislature added an exception to the married parents exclusion when the child has been adopted by one parent.


Under the Equal Protection Clause, the court recognized that adoptive parents were treated differently than biological parents. Nevertheless, the court held that the state law does “significantly interfere” with the parents’ fundamental right in making parenting decisions. The grandparents are required to have a preexisting relationship with the child, and they have to overcome the presumption that visitation is not in the best interest of the child. The court held that being subject to a visitation petition is an incidental impact and not a significant interference with the fundamental right.

Having determined that no fundamental right was infringed, the court then examined the facts under the lower, rational basis, scrutiny. The court ruled that the state has a legitimate interest in protecting the best interest of the child. § 3104 was written to make sure children did not lose the needed stability that can come with a relationship with grandparents.

What You Should Do
As with all family law matters, grandparents’ visitation rights can become very complex. California laws are written to make sure that grandparents who are able to provide a stable relationship for their grandchildren warrant a petition for visitation. If you have a custody or visitation issue, it is recommended that you speak with an experienced attorney to protect your rights.

San Jose Divorce Lawyer, John S. Yohanan, has extensive experience handling child custody and visitation issues. If you want a divorce lawyer with more than 30 years of experience on your side, email us or call our office at (408) 297-0700.

Additional Resources:
Custody & Parenting Time (Visitation), 2014, Judicial Council of California/Administrative Office of the Courts

The Supreme Court’s Parental Rights Doctrine, 2014,

More Blog Entries:
California Parents Enforcing Child Custody Orders After the Child Has Reached the Age of Eighteen — Williams v. Cavers, Mar. 31, 2014, San Jose Family Law Blog

Los Angeles Murders Linked to Child Support, Family Law Issues, Dec. 22, 2013, San Jose Family Law Blog