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self-study / Family Law

Feb. 11, 2021

Why can’t I see my grandchild?

Stanley Mosk Courthouse

Scott J. Nord

Judge, Los Angeles County Superior Court

Whittier College School of Law

An uncredited quote says "no cowboy was ever faster on the draw than a grandparent pulling a baby picture out of a wallet." And for many grandchildren, the time spent with their grandparents is priceless. But what happens when a parent refuses to allow grandparents to see their grandchild? What are the visitation right of a grandparent? Can the parent(s) object to grandparent visitation?

The Troxel Decision

The U.S. Supreme Court receives approximately 7,000 petitions for writ of certiorari every year. The court only grants certiorari for approximately 100 to 150 petitions each session, or approximately 2%. Of all the decided Supreme Court cases, only one has dealt directly with the issue of a parent's right to control visitation.

In 2000, the court rendered a decision in Troxel v. Granville, 530 U.S. 57 (2000), in a plurality decision, overturning a Washington statute that permitted "'[a]ny person' to petition the superior court for visitation rights 'at any time' and authorized the court to grant such visitation if it would 'serve the best interest of the child.'" (All references herein will be to the plurality decision). In Troxel, the paternal grandparents petitioned for visitation with their two granddaughters after their son committed suicide. The children's mother notified them she wished to limit their visitation with her daughters to one short visit a month. The parents had never married and had separated two years before the father died. Before his death, the father had lived with the paternal grandparents and had regularly brought his daughters to his parents' home for weekend visits. 60-61. The trial court, over the mother's objection, granted the grandparents' visitation rights.

In reversing the trial court, the Supreme Court observed that "the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Id. at 66. The court's opinion concluded that that the Washington statute, as applied, violated the fundamental liberty interest of the mother. Id. at 67. There is "a presumption that fit parents act in the best interests of their children" and "so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Id. at 68-69.

The Supreme Court found that "the problem here is not that the superior court intervened, but that when it did so, it gave no special weight at all to [mother]'s determination of her daughters' best interests." Id at 69. The court continued "the decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent's decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination." Id. at 70. "[T]he Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child-rearing decisions simply because a state judge believes a 'better' decision could be made." Id. at 72-73.

But Troxel was a Washington case, so how does that affect grandparent visitation rights in California? The answer is simple. Every California published decision dealing with grandparent's visitation starts with a discussion and application of the Troxel analysis.

Grandparent Visitation Under California law

A grandparent's rights to court-ordered visitation with their grandchildren are purely statutory. In re Marriage of Harris, 34 Cal.4th 210, 219 (2004). California has three statutes that expressly address grandparent visitation: California Family Code Sections 3102, 3103 and 3104. (All references, unless otherwise noted, will be to the California Family Code). The sections have significant differences in their applicability but are similar in their application.

Differences between California Family Code Sections 3102, 3103 and 3104

Section 3102 grants reasonable visitation to a grandparent (and other close relatives) of a deceased parent during the child's minority upon a finding that the visitation would be in the best interest of the minor child. Section 3102(a).

The applicability of Section 3103 arises when there is already pending litigation between the parents under Section 3021, and grandparents act as "intervenors" in the filed case to seek visitation with the minor child.

When there is no litigation pending between the parents, Section 3104 allows a grandparent to independently petition the court for visitation with a minor child. Section 3104(a) and (b) layout the specific circumstances under which a petition can be filed. If the parents are married and living together with the minor child, unless one of the parents joins in the petition, a grandparent is precluded from bringing this type of petition. Section 3104(b)(3). Further, once litigation ends between the parents (i.e., by judgment), and the contentions under Section 3021 are resolved, Section 3103 is no longer applicable to grandparent visitation rights and Section 3104 is the controlling Section. Harris, 34 Cal. App. 4th at 221. Also, while Section 3102 allows for visitation beyond grandparents (i.e., great-grandparents and others related to the deceased), Sections 3103 and 3104 limit visitations to only grandparents. Ed H. v. Ashley C., 14 Cal. App. 5th 899 (2017).

Similarities Between Sections 3102, 3103 and 3104

While the differences between the sections deal primarily with the prerequisites for filing a petition for visitation, once filed, the sections have the following fundamental issues in common which a court must address in granting visitation to a grandparent: a determination of the fitness of the parents; does the grandparent have a preexisting relationship with the minor child; is the visitation is in the best interest of the minor child; a determination of what is reasonable visitation; and the standard of proof applied in each case.

The Fitness of the Parents

The phrase "fitness of the parents" is not generally directed towards a parent's ability to provide the necessities of life for the minor child (food, clothing and shelter). Rather, the fitness question is directed towards their ability to make decisions in their child's best interest. The law presumes that a parent is fit and will act in their child's best interest unless that presumption is rebutted.

An example of an improper application of the "fitness" analysis would be Zasueta v. Zasueta, 102 Cal. App. 4th 1242 (2002). In determining visitation, the Zasueta court failed to apply the requisite presumption that the mother, as a fit parent, would act in her child's best interests. The court concluded mother was an unfit parent based on her decision not to allow grandparent visitation rather than on her abilities to properly care for the minor child and despite the grandparents testifying, in fact, that she was a good mother. The court's finding of unfitness was erroneously based on the assumption that grandparent-grandchildren relationships always benefit children. Id. at 1253-54. Instead, the court dismissed the mother's concerns about the grandparent's home and the minor's disposition upon returning from visits by stating it took "these allegations of drinking and swearing ... with a grain of salt." Id. at 1253. The trial court applied its own subjective beliefs and experiences regarding the importance of a grandchild-grandparent relationships and failed to accord any "special weight" to the mother's child-rearing decision. Id.; Troxel, 530 U.S. at 72.

Preexisting Relationship Between Grandparents and Minor Child

Sections 3102(b) and 3104(a)(1) allow for grandparent visitation only when the trial court finds that there is a preexisting relationship between the grandparent and the grandchild. Stuard v. Stuard, 244 Cal. App. 4th 768, 787 (2016). Section 3103 does not explicitly state there is a requirement for a preexisting relationship, however, since both parents are required to object to grandparent visitation, it can be presumed that this would act as a safeguard to prevent one parent from alone blocking visitation when a preexisting relationship existed. Similarly, if no preexisting relationship exists, both parents would act in concert to protect the minor child by objecting to any visitation. Section 3103(d).

Best Interest of the Minor Child

To overcome the presumption that a fit parent will act in the best interest of the grandchild, a grandparent must demonstrate that denial of visitation would be detrimental to the grandchild. The fair import of the word "'detriment' is damage, harm, or loss. If grandparent visitation is in the grandchild's 'best interest,' it is not 'detrimental.' If grandparent visitation is not in the grandchild's 'best interest,' it is 'detrimental.'" Rich v. Thatcher, 200 Cal. App. 4th 1176, 1180 (2011).

In Ian J. v. Peter M., 213 Cal. App. 4th 189 (2013), disapproved on other grounds by Conservatorship of O.B., 9 Cal. 5th 989 (2020), the court ordered visitation with maternal grandparents where the father cut off visitation for his daughters after discovering that the deceased mother had accused the maternal grandfather of rape. The trial court, over the father's objections, granted unsupervised visitation to the grandparents. In reversing the granting of visitation, the court noted "the family court's failure to recognize ... that a reasonable parent in [father]'s position would have legitimate concerns about [the grandfather]" and "was preventing contact in the best interest of his daughters." Id. at 209-10. The court stated "plainly, in the context of a dispute between parents over custody and visitation these kinds of concerns would not be decisive, notwithstanding whatever tragedy might give rise to their particular claims, but [grandparents] do not have parental rights and a parent's concerns about such matters are sufficient to withstand the desires of grandparents." Id. at 209. The trial court incorrectly acted as if the grandparents had the rights of a parent in a dissolution proceeding. Id. at 210.

In protecting their children from harm, parents are not limited to consideration of hazards which are certain; fit parents may also protect their children from risks which, although not certain to occur, are grave. Id. at 211. Even if that risk is a grandparent.

Who Decides What Is Reasonable Visitation?

As a result of Troxel and Zasueta, courts are inclined to give broad discretion or "special weight" to the parent's decision for the setting of a visitation schedule with the grandparents once found to be a fit parent. In re Marriage of Ross and Kelley, 111 Cal. App. 4th 130 (2003). The phrase "reasonable visitation" was crucial in Troxel, as the trial court allowed the grandparents to have more visitation with their grandchildren than the surviving parent was willing to allow. Troxel, 530 U.S. at 60-61. In Troxel, the trial court concluded that the grandparents "'provide opportunities for the children in the areas of cousins and music"' and that " '[t]he children would be benefitted from spending quality time' " with the grandparents. Id. at 72. The Troxel court ultimately concluded that "this case involves nothing more than a simple disagreement between the [trial court] and [the surviving parent] concerning her children's best interests." Id.

Kyle O. v. Donald P., 85 Cal. App. 4th 848 (2000), illustrates parental discretion. In Kyle, the father did not object to the maternal grandparents having visitation but did not want a set schedule. This was found to be a reasonable visitation arrangement even if it is unscheduled. In Punsley v. Ho, 87 Cal. App. 4th 1099 (2001), the mother allowed the child to visit with paternal grandparents. After a dispute arose over the amount of time and location of visits, the court set the visitation schedule and required the mother to drive the child from San Diego to Los Angeles. This was found to be an unreasonable visitation schedule as Mother had allowed the grandparents to see the minor child. In contrast, in Hoag v. Diedjomahor, 200 Cal. App. 4th 1008 (2011), the father refused to let the minor children see the maternal grandparents because of personal disputes between them. The court found that was unreasonable and ordered a visitation schedule be set.

Standard of Proof

The standard of proof required to overcome the rebuttable presumption that a fit parent is acting in the best interest of the minor child regarding grandparent visitation is clear and convincing evidence.

The clear and convincing standard requires evidence that is "sufficiently strong to command the unhesitating assent of every reasonable mind." Harris, 34 Cal. 4th at 248, 250. Further, the evidence presented must demonstrate that denying visitation would be detrimental to the minor child and therefore not in the minor's best interest. Rich, 200 Cal. App. 4th at 1181. This rebuttable presumption, and the high burden of proof imposed on the grandparent, simply recognizes the preference in favor of the presumably correct visitation decision of a fit surviving parent comes "first." Id. A trial court can constitutionally grant grandparent visitation over the objection of a fit parent where, for example, the parent's reasons for objecting to visitation are not reasonable and/or not credible. Hoag, 200 Cal. App. 4th at 1010. Thus, a fit parent's visitation decision is not unassailable.

In conclusion, in a lawerly answer to the original question of what are the visitation right of a grandparent? It depends... 


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