Family Code Section 3104 was revised effective January 1, 2015 to add a
provision for grandparent custody/visitation where a parent (i.e., their
son or daughter) is incarcerated and the other parent objects to regular contact.
Section 3104 and
section 3103 appear to be extremely similar, and therefore confusing as to which applies
to a particular grandparent custody application. Generally speaking, section
3104 applies to situations where there is
no divorce or custody proceeding
already pending between the children's parents. For instance, the 2015 amendments
now allow grandparents to seek custody of children who have a parent in
jail but possibly that person's parent hopes to get custody or visitation
with his or her child, but neither has filed a proceeding.
Section 3103 addresses grandparent visitation rights during an already pending proceeding
between parents (i.e., a divorce), where the grandparents seek to be joined
as parties in the litigation between the parents who are children of the
What must be established is far more detailed in a 3104 application than
what appears to be required under
If you are involved or plan to seek to be involved in either situation,
be sure to read
Cal.Rules of Court, Rule 5.24 which discusses "mandatory" and "permissive" joinders
and what proof must preliminarily be shown. Arguably, Rule 5.24 only applies
to Section 3104 applications.
CALIFORNIA FAMILY CODE
CUSTODY OF CHILDREN
RIGHT TO CUSTODY OF MINOR CHILD
Family Code Section 3104
(a) On petition to the court by a grandparent of a minor child, the court
may grant reasonable visitation rights to the grandparent if the court
does both of the following:
(1) Finds that there is a preexisting relationship between the grandparent
and the grandchild that has engendered a bond such that visitation is
in the best interest of the child.
(2) Balances the interest of the child in having visitation with the grandparent
against the right of the parents to exercise their parental authority.
(b) A petition for visitation under this section shall not be filed while
the natural or adoptive parents are married, unless one or more of the
following circumstances exist:
(1) The parents are currently living separately and apart on a permanent
or indefinite basis.
(2) One of the parents has been absent for more than one month without
the other spouse knowing the whereabouts of the absent spouse.
(3) One of the parents joins in the petition with the grandparents.
(4) The child is not residing with either parent.
(5) The child has been adopted by a stepparent.
(6) One of the parents is incarcerated or involuntarily institutionalized.
At any time that a change of circumstances occurs such that none of these
circumstances exist, the parent or parents may move the court to terminate
grandparental visitation and the court shall grant the termination.
(c) The petitioner shall give notice of the petition to each of the parents
of the child, any stepparent, and any person who has physical custody
of the child, by personal service pursuant to Section 415.10 of the Code
of Civil Procedure.
(d) If a protective order as defined in Section 6218 has been directed
to the grandparent during the pendency of the proceeding, the court shall
consider whether the best interest of the child requires that any visitation
by that grandparent should be denied.
(e) There is a rebuttable presumption that the visitation of a grandparent
is not in the best interest of a minor child if the natural or adoptive
parents agree that the grandparent should not be granted visitation rights.
(f) There is a rebuttable presumption affecting the burden of proof that
the visitation of a grandparent is not in the best interest of a minor
child if the parent who has been awarded sole legal and physical custody
of the child in another proceeding, or the parent with whom the child
resides if there is currently no operative custody order objects to visitation
by the grandparent.
(g) Visitation rights may not be ordered under this section if that would
conflict with a right of custody or visitation of a birth parent who is
not a party to the proceeding.
(h) Visitation ordered pursuant to this section shall not create a basis
for or against a change of residence of the child, but shall be one of
the factors for the court to consider in ordering a change of residence.
(i) When a court orders grandparental visitation pursuant to this section,
the court in its discretion may, based upon the relevant circumstances
of the case:
(1) Allocate the percentage of grandparental visitation between the parents
for purposes of the calculation of child support pursuant to the statewide
uniform guideline (Article 2 (commencing with Section 4050) of Chapter
2 of Part 2 of Division 9).
(2) Notwithstanding Sections 3930 and 3951, order a parent or grandparent
to pay to the other, an amount for the support of the child or grandchild.
For purposes of this paragraph, "support" means costs related
to visitation such as any of the following:
(B) Provision of basic expenses for the child or grandchild, such as medical
expenses, day care costs, and other necessities.
(j) As used in this section, "birth parent" means "birth
parent" as defined in Section 8512.