Tanya had a child out of wedlock with Jose in Oakland. The father filed a paternity action.  Then the father’s mother Lupita filed to be part of the lawsuit. A few years later Jose died of a drug overdose and the grandmother tried to establish her visitation rights, over Tanya’s objection.  Both women did not get along and Lupita’s contact with the child only occurred during the father’s periods of supervised visitation when the grandmother was the court-appointed supervisor.

Does the grandmother have visitation rights?

In this situation, no.  A recent case, “Rich v. Thatcher” denied the grandmother’s claim to establish visitation rights. As background, the Supreme Court has said that the care of a child primarily rests with the parents.  A“fit parent” has a federal right under the U.S. Constitution to make decisions on behalf of their children. This is the case even if it may not be popular with other family members. Further, the law presumes that a “fit parent will act in the best interest of the child.” However, a claimant – here, the grandmother – may overcome this rule by showing that denial of visitation would be “detrimental to the child.” However, the grandparent has to provide an overwhelming, but not 100%, amount of evidence to support their case.

In the end, the grandmother could not prove that denial of visitation would be detrimental to the child by this level of evidence. The court’s decision was based on the fact that the grandmother failed to show that she had a “deep and abiding relationship” with the child. Her only interactions with the child were when she supervised the father’s visitation periods. In addition, the court had “great concern” over the veracity of the grandmother’s evidence.

Since the mother of the child was not unfit to parent and the grandmother was unable to meet her level of proof, her claim for visitation was denied. If you are a grandparent seeking to establish visitation with your grandchild, be mindful that the required proof is a tough standard to meet. Be sure to prepare your case with a family law legal professional.