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Grandparent Visitation Rights – In re Marriage of Koelewyen

Sometimes it’s not just the parents involved in child custody and visitation disputes after a divorce. California’s Fifth District Court of Appeals recently considered a grandparent’s request for a court order giving her the right to visit with her grandchildren. As the court explained, state law generally presumes that the decision should be left to the parent with custody of the kids.

tricycleMother and Father were married for nearly seven years before they separated in 2014 and later divorced. They had two children – ages four and six at the time of the split – and Mother also had a 14-year-old daughter from a previous marriage. The couple separated shortly before Husband was charged with molesting the oldest daughter, a crime for which he was convicted and sentenced to eight years in prison. A trial judge gave Wife sole custody of the children and didn’t allow Husband visitation.

About a month after the divorce was finalized, Father’s mother (Grandmother) asked the court to grant she and her husband (Grandfather) visitation time with the kids. She said Wife hadn’t allowed them to see the children after she found out about the molestation. The court – after a hearing – denied the request to order visitation, instead leaving it up to Mother to decide whether Grandparents would see the kids. The court explained that there’s a presumption against court-ordered grandparent visitation in cases in which the parent with sole custody opposes it. In this case, Wife said she didn’t want Grandparents around the children because they had continued to support Father after he was charged with the crime.

Affirming the decision on appeal, the Fifth District said the trial court didn’t abuse its discretion in denying the visitation request. “To overcome the presumption against court-ordered grandparent visitation in cases of parental objection thereto, courts have required grandparents to present clear and convincing evidence that visitation is in the minor children’s best interest,” the Court explained. The lower court acted within its discretion when it found that Grandparents were not able to present such evidence.

Grandparents told the judge that they had spent significant time with the kids before Mother and Father divorced and argued that it was in the children’s best interest to maintain that relationship. They said they were ashamed of what their son had done and didn’t want it to prevent them from being in the kids’ lives. Mother, on the other hand, said she didn’t think it was a good idea because the children were already in therapy for the trauma related to the molestation and the divorce.

The Fifth District said the trial court didn’t abuse its discretion by leaving the decision in Mother’s hands. ‘The ruling was plainly within the trial court’s discretion to make, and [Grandmother] has failed to demonstrate otherwise,” it concluded.

If you are considering a divorce or are grappling with child custody, visitation, and other issues in California, contact San Jose divorce attorney John S. Yohanan. With more than 30 years of experience, Mr. Yohanan is an accomplished family law attorney who has helped a number of clients resolve a wide variety of marital disputes. Call our office at (408) 297-0700 or contact us online to schedule a consultation.

Related blog posts:

Resolving California Child Custody Cases when Parents Live in Different Places – In re Marriage of Runge

Appealing a California Divorce Decision – In re Marriage of Plasse

Want More Child Visitation Time in California? Make Sure to Use What You Have