Legal Question in Family Law in California

If the grandparents are represented by an attorney, contact the attorney and point out that the Petition is improper under the law and if it is not dismissed you will request the court impose sanctions, including requesting the court to not allow the grandparents to file any similar future actions without first obtaining court approval. Ask on what legal basis the petition can be filed and why Section 3104 does not decree that it must be dismissed.

If the grandparents have no attorney, write the grandparents and ask them to dismiss the petition [giving the same reasons that you would give the attorney, and ask for a written response if they will not immediately dismiss the case]. If they or their attorney will not dismiss t hat petition, you have to file a timely response to the petition pointing out what they are requesting, the actual relevant facts of the case, the case law, arguments why they should lose, and what you want the court to do [dismiss, impose sanctions, reimburse you for your costs]. The court has the discretion to decide what the sanctions may be; a local attorney might know if that would include attorney fees.

I agree with Mr. Shers. Your analysis of the operative statute is correct. A petition for visitation under Family Code section 3104 is not permitted if the natural or adoptive parents are married, unless one of the following circumstances exist:

1) The parents are 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 granparents' petition.

4) The child is not residing with either parent.

OR

5) The child has been adopted by a stepparent.