Can Grandparents Win Visitation Based on the Parent's Custody?

In this partially-published opinion, in which Grandfather “was subject to a 2015 restraining order requiring him to have no contact with his granddaughter or the girl’s mother and to stay 100 yards away from them,” the Fifth District said:


In the published portion of the opinion it address[es] and resolve[s] several legal questions involving section 527.6, subdivision (j)(1) that have not been explicitly decided in a published decision. First, the determination whether to modify or terminate a civil harassment restraining order is committed to “the discretion of the court.” (§527.6, subd. (j)(1).) Second, the trial court’s discretionary authority to modify or terminate a civil harassment restraining order includes, but is not limited to, the three grounds for modifying ordinary injunctions set forth in section 533. Third, a trial court has the discretion to modify a restraining order when, after considering the relevant evidence presented, it determines there is no reasonable probability of future harassment. This discretion extends to modifying a specific term in a restraining order that deals with a particular threat of future harm when that threat no longer exists. Thus, the court may eliminate or relax one restriction in the restraining order while leaving the remaining restrictions in place. Fourth, the restrained party seeking modification on the ground that there is no longer a reasonable probability of a future harm has the burden of proving this ground by a preponderance of the evidence.

… The stay-away order included the girl because of the risk Grandfather and the grandmother would abduct the girl from her mother. Grandfather requested a modification of the stay-away order only as it relates to his granddaughter so that he could attend family functions attended by the granddaughter in the company of her father (Grandfather’s son). Grandfather argued the bitter custody battle between his son and the girl’s mother had been resolved with his son obtaining 50 percent custody and this change in the custody arrangement justifies a modification of the stay-away order. In short, Grandfather implies his son’s equal custody of the child effectively eliminates the threat Grandfather and the grandmother would abduct the child.

The trial court denied Grandfather’s modification request based on its determination that the custody orders for the child were not relevant to whether a modification was appropriate. As described below, we conclude the court interpreted the scope of its statutory discretion too narrowly. As a result, its order denying the modification request was “ ‘not an exercise of informed discretion and is subject to reversal.’ ” (Cooper v. Bettinger (2015) 242 Cal.App.4th 77, 90 (Cooper).) We therefore reverse the order denying Grandfather’s request to modify.

Read the official court record here.

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