Visitation Rights for Minor Children

Division 8, Part 2, Chapter 5 of the Family Code deals with the rights of visitation and rights to the custody of a minor child.

Section 3100 requires the court to grant reasonable visitation rights to a parent when it is shown that the visitation would be in the best interest of the child. In the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child.

In determining the type of visitation with the restrained party, if any, is in the best interest of the child, the court is required to consider the nature of the acts that led to the protective order, the period of time that has elapsed since that order, and whether the restrained party has committed further acts of abuse.

If the court has found that circumstances warrant making an order granting or modifying a custody order on an ex parte basis, the court must consider whether the best interest of the child requires that visitation by the party whose conduct presents a risk of immediate harm to the child or immediate risk that the child will be removed from the State of California should be suspended, denied, or limited to situations in which a third person, specified by the court, is present, including virtual visitation.

Section 3101 allows the court to grant reasonable visitation to a stepparent, if visitation by the stepparent is determined to be in the best interest of the minor child. The term “stepparent” is defined.

Section 3102 provides that, if either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the child’s minority upon a finding that the visitation would be in the best interest of the minor child.

Section 3104 specifies that, 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 specified acts. In addition, a petition for visitation under this section cannot be filed while the natural or adoptive parents are married, unless one or more of the six specified circumstances exist.

The petitioner is required to 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. If a protective order has been directed to the grandparent during the pendency of the proceeding, the court must consider whether the best interest of the child requires that any visitation by that grandparent should be denied.

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. 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.

Section 3105 contains a legislative finding and declaration regarding a parent’s fundamental right, as well as the rights of children. The court may grant reasonable visitation rights to a person who previously served as the legal guardian of a child, if visitation is determined to be in the best interest of the minor child.