Grandparent Visitation – California Family Code Section 3102
Grandparent Visitation Rights – CA Fam C §3102
On October 17, 2011, Grandparent Visitation Rights were granted a significant reprieve by the California State Supreme Court in a case called Hoag v. Diedjomahor (2011) DJDAR 15328 (Hoag). In this case, the California Supreme Court distinguished how the application of Family Code section 3102 (allowing relative visitation over the objection of the surviving parent in the event of the death one parent) can be constitutionally applied even in light of the U.S. Supreme Court landmark case of Troxel v. Granville (2000) 530 U.S. 57 [120 S.Ct. 2054, 147 L/Ed.2d 49] (Troxel), which found some such statutes to be an unconstitutional infringement on the fundamental rights of parents.
The Hoag court’s discussion of general legal principles, an excellent review of the history of Grandparent Visitation Rights, from DJDAR pages 15330 to 15331 is included in part below. The Hoag court review below shows the need to balance giving special weight to a parent’s decision in regard to supporting or not supporting a child’s relationship with relatives of a deceased parent and the court’s job to review such a decision, keeping in mind what is in the child’s best interest.
In Troxel the trial court allowed two grandparents – the parents of a deceased parent – to have more visitation with their grandchildren than the surviving parent was willing to allow. (Troxel, supra, 530 U.S. 57, at pp. 60-61 [plur. opn.].) It relied on a state law that authorized it to grant any person visitation, as long as such visitation was in the best interest of the child. (Id. at pp. 61, 67.)
The plurality opinion, by Justice O’Connor began by noting that parents have a “fundamental right . . . to make decisions concerning the care, custody, and control of their children.” (Troxel, supra, 530 U.S. at p. 66 [plur. opn.].) It concluded that the statute “as applied . . . in this case, unconstitutionally infringes on that fundamental parental right” (id. at p. 67), based on “the combination of several factors . . . “ (Id. at p. 68.) First, the surviving parent was a fit parent. (Id. at p. 68-69.) “[T]here is a presumption that fit parents act in the best interests of their children.” (Id. at p. 68.) Second, the trial court (and the state statute) failed to give “special weight” to the surviving parent’s determination of the child’s best interests. (Id. At pp. 69-70; see also id. At p. 67) Third, the surviving parent had never tried to cut off visitation entirely; the trial court however, “fail[ed] to accord significant weight” to the fact that she had offered the grandparents “meaningful visitation.” (Id. at pp. 71-72.) ‘Significantly,” the plurality noted, “many other States expressly provide by statute that courts may not award visitation unless a parent has denied (or unreasonably denied) visitation to the concerned third party.” (Id. at p. 71.)
The plurality noted that the trial court had based its visitation order on two findings – that the grandparents could “’provide opportunities for the children in the areas of cousins and music.’” And that “’{t]he children would be benefited from spending some time’” with the grandparents. (Troxel, supra, 530 U.S. at p.72 [plur. opn.].) It concluded that “this case involves nothing more than a simple disagreement between the [trial court] and [the surviving parent] concerning the children’s best interests.” (Ibid.) It declared, “[T]he Due Process Clause does not permit a State to infringe on the fundamental rights of parents to make childrearing decisions simply because a state judge believes a ‘better’ decision could be made.” (Id. at pp. 72-73.)
Justice Souter concurred in the judgment, (Troxel, supra, 530 U.S. at pp. 75-79 (conc. opn. of Souter, J.].) He would have held the statute unconstitutional on its face. (Id. at pp. 76-77.) Justice Thomas also concurred in the judgment. (Id. at p. 80 [conc. opn. of Thomas, J.].) In his view, under the strict scrutiny test, “the State of Washington lacks even a legitimate governmental interest – to say nothing of a compelling one – in second-guessing a fit parent’s decision regarding visitation with third parties.” (Ibid.)
The Troxel decision originally was thought to end any grandparent’s rights to seek additional visitation from a California court as long as the surviving parent was fit and offered meaningful visitation to the grandparent. The court’s ability to determine what was in the best interest of the child as spelled out in Family Code section 3102 appeared to have been gutted.
In California, Family Code section 3102, subdivision (a) (section 3102), as relevant here, provides: “If either parent of an unemancipated minor child is deceased, the . . . grandparents of the deceased parent may be granted reasonable visitation with the child during the child’s minority upon a finding that the visitation would be in the best interest of the minor child.”
Under Troxel, however, section 3102 has been held unconstitutional as applied in particular factual circumstances. For example, in Zasueta v Zauseta (2002) 102 Cal.App.4th 1242, the court held the trial court erred by “dismiss[ing]” the surviving parent’s concerns about visitation – which related to the grandparents’ drinking, swearing, and uncleanliness, as well as the child’s “uneasiness” and acting out after visits – instead of according them special weight. (Id. at p. 1253.)
Similarly, Punsly v. Ho (2001) 87 Cal.App.4th 1099, disapproved on other grounds in Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1226, footnote 4, held that the trial court erred because it did not apply a presumption that the surviving parent’s visitation decisions were in the child’s best interest. (Id. at p. 1109.) Moreover, the trial court erred by “dismiss[ing]” her concerns about visitation, including the fact that the grandparents used “inappropriate language.” (Id. at pp. 1109-1110.)
Also in Punsly, the grandparents argued that Troxel did not apply because the surviving parent had cut off visitation entirely (Punsly v. Ho, supra, 87 Cal.App.4th at p. 1108); only after the grandparents obtained counsel did she offer them a visitation schedule, which they viewed as to restrictive. (Ibid.; see also id. at p. 1102.) The court disagreed stating, “We construe Troxel’s emphasis on a parent’s voluntary efforts for visitation to mean that before a court may intervene, the parent must be given the opportunity to voluntarily negotiate a visitation plan. [Citation.] Consequently, it is irrelevant when or why [the surviving parent] proposed her own visitation schedule. The important consideration here is that she did.” (id. at p. 1108.)
In Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848, the court noted that the surviving parent was fit, and he was willing to allow grandparent visitation; he simply did not want a court-imposed visitation schedule, so that visits would be spontaneous and would not interfere with the child’s routine. (Id. at pp. 863-864.) It concluded, “In light of the fact [the surviving parent] was a fit parent who had not sought to cut off grandparent visitation completely, and in light of the absence of substantial evidence rebutting the presumption in favor of a fit parent’s parenting decisions, the application of section 3102 to establish a schedule of visitation over [the surviving parent]’s objection unduly infringed upon his fundamental parenting right to make decisions about the care, custody, and control of his daughter. [Citation.]” (Id. at p. 864.)
It was not until three years later, that a California Appellate Court began to chip away at the idea that Family Code section 3102 was unconstitutional on its face or under all circumstances!
