Metropolitan News-Enterprise


Friday, January 4, 2002


Page 1


State Supreme Court to Review Constitutionality of California’s Grandparent Visitation Statute


By a MetNews Staff Writer


The state Supreme Court yesterday agreed to review a Fourth District Court of Appeal ruling that severely restricts the authority of family law judges to order grandparent visitation over a parent’s objection.

The justices unanimously granted review of Div. One’s Sept. 24 decision in In re Marriage of Harris, 92 Cal.App.4th 499 at its weekly conference. The conference is usually held on Wednesdays, but was moved this week under revised holiday scheduling.

In Harris, the Court of Appeal held that substantive due process limits a court’s authority under the state’s grandparent visitation statue to cases in which there is clear and convincing evidence that the child will suffer harm if visitation were not granted.

The panel reversed a 1999 order requiring Karen Butler, a remarried Utah resident, to send her daughter Emily, then 5 years old, to San Diego for four week-long visits with the child’s paternal grandparents. Emily was the product of Butler’s brief and stormy marriage to Charles Erik Harris and was born after the couple separated.

The order by San Diego Superior Court Judge Thomas Ashworth III was based on Family Code Sec. 3104, which allows a court to order grandparent visitation when the parents are living separate and apart or the child is not living with a parent. The statute applies a best-interest-of-the-child standard, with a rebuttable presumption that grandparent visitation is not in the child’s best interests if the custodial parent objects.

Ashworth’s order came down prior to the decision in Troxel v. Granville (2000) 530 U.S. 57. Troxel held that Washington state’s grandparent visitation statute—which was far broader than Sec. 3104—was unconstitutional as applied in a case where the parent wasn’t unfit and the court did not presume that the mother was acting in the child’s best interests and gave no weight to the mother’s offer to permit some visitation, although less than the grandparents sought.

In reversing Ashworth, Div. One held that while Sec. 3104 was not unconstitutional on its face, applying it to the facts before the court constituted undue interference with the mother’s fundamental right to parent her child. The court cited Troxel as well as the right to “safety, happiness and privacy” under Art. I, Sec. 1 of the state Constitution.

 In other action yesterday, the high court:

Allowed famed defense attorney Leslie Abramson to keep a $300,000 fee for representing an accused murderer in a potential death penalty case in Orange Superior Court. No justice voted to review the Oct. 16 ruling of the Fourth District’s Div. Three in People v. Tran, 92 Cal.App.4th 1149, holding that an attorney representing an indigent defendant at the expense of friends or relatives cannot be required to dip into the fee to pay costs and expenses, even if the fee is unusually large.

Let stand a ruling by this district’s Court of Appeal allowing the State Bar to publicize a “private” reproval on its website. No justice voted to grant review in Mack v. State Bar, 92 Cal.App.4th 957, decided Oct. 5.

Unanimously agreed to review a ruling by this district’s Div. Seven that a defendant convicted of robbery was entitled to a new trial. Los Angeles Superior Court Judge C. Robert Simpson Jr. told the jury that the defendant had voluntarily absented himself from the courtroom, based on a report from the bailiff.

Justice Earl Johnson Jr., joined by Presiding Justice Mildred Lillie, said the trial judge should not have proceeded in the absence of the defendant without obtaining a written or oral waiver, either in open court or in the lockup. Justice Fred Woods dissented in People v. Gutierrez, B145089, decided Oct. 9. The opinions were unpublished.


Copyright 2002, Metropolitan News Company