Grandparents' ability to obtain visitation rights to their grandchildren has become very difficult, if not almost impossible. Most states, including California, now hold true to the concept that parents have a fundamental liberty to make decisions about their children's care, custody and control. Therefore, if a parent is a fit parent and allows at least some contact with the grandparents, albeit minor, the grandparents will have a very difficult time convincing trial courts to grant them formal visitation rights to their grandchildren.

California law provides a rebuttable presumption that grandparent visitation is not in a child's best interest if both parents agree that the visitation should not be ordered. In addition, California law also provides a rebuttable presumption that grandparent visitation is not in a child's best interest if the parent who has sole legal and physical custody of the child objects, or if the parent with whom the child resides (in the absence of a custody order) objects.

The foregoing notwithstanding, current law provides three mechanisms by which grandparents may obtain court-ordered visitation with their grandchildren.

• When parents are married: Grandparents are allowed to request visitation with their grandchildren during the parents' marriage. The court can grant visitation rights to the grandparents in these matters only if (1) the visitation order is in the child's best interest; (2) there is a pre-existing bond between the child and the grandparents that justifies visitation; and (3) the child's interest in visitation outweighs the parents' right to exercise parental authority.

The court may only order grandparent visitation during the parents' marriage if one or more of the following circumstances exist: (1) the parents are living apart; (2) one parent is absent and his or her whereabouts are unknown; (3) one parent joins in the grandparents' petition; or (4) the child does not live with either parent. If the court grants visitation to a grandparent, it must terminate the order once none of these circumstances exist.

• When parents separate: California law authorizes reasonable grandparent visitation awards in any custody proceeding, i.e., once the parents separate. A grandparent who is seeking visitation must give notice of the petition by certified mail to both parents and/or to step-parents and anyone who has physical custody of the child. There is a rebuttable presumption that grandparent visitation is not in a child's best interest if both parents agree that the visitation should not be ordered.
• When a parent dies: The third mechanism by which grandparents can seek visitation rights is when one parent of the minor child is deceased. The parents, siblings, grandparents or other children of a deceased person can request visitation with the deceased's children.

In these cases, the visitation determination will be based on the child's best interest and, if the requesting party is not the child's grandparent, on the amount of pre-petition contact between the applicant and the child.