Metropolitan News-Enterprise


Wednesday, December 10, 2003


Page 3


Appeals Court Says Stepparent Visitation Order Is Unconstitutional


By a MetNews Staff Writer


A Superior Court judge’s order establishing visitation rights for a stepfather violates the parents’ constitutional right to custody, the Court of Appeal for this district ruled yesterday.

Div. Six ordered reconsideration of Santa Barbara Superior Court Judge Zel Canter’s order granting visitation rights to the man, who was identified in the opinion as James W. On remand, the court said, visitation may be ordered only if the stepfather can rebut the presumption that the parents are in the best position to determine whether visitation is in the child’s best interests.

James W., the court explained, married Claudine W. in 1995, when her son from an earlier, non-marital relationship was three years old.

James W. filed for dissolution in 2000, and the parties agreed to visitation. After subsequent mediation sessions, the visitation agreement was modified, but in February 2002, the mother—later joined by the child’s father—moved to terminate visitation in its entirety.

She alleged that James W. intended to move to San Jose and that “out of town” visits were not in the boy’s best interests.

The judge initially ruled in favor of the mother. But after an evaluation by a clinical psychologist, who reported that there was a strong bond between the boy and the stepfather, Canter ordered one weekend visit every other month and one seven-day visit every summer.

The judge relied on Family Code Sec. 3101, which allows stepparent visitation orders if such visitation is determined to be in the child’s best interests. But Justice Steven Perren, writing for the Court of Appeal, said the statute was unconstitutional as applied.

Perren cited Troxel  v. Granville (2000) 530 U.S. 57. That case overturned a state judge’s ruling, based on a Washington statute, granting specified visitation rights to paternal grandparents over the objection of the children’s mother, who had custody.

California’s statute governing visitation orders in favor of grandparents and other relatives, Family Code Sec 3102, has been held unconstitutional as applied in four published opinions, all of which cited +Troxel+. “In all four cases, the appellate courts focused on the trial court’s failure to apply a presumption in favor of the decision made by the parent and the absence of evidence to overcome the presumption that a fit parent acts in the child’s best interest,” Perren explained.

Canter made the same error, the justice explained. The record, Perren wrote, does not indicate that the trial judge presumed that the parents’ determination that visitation with the stepfather was contrary to the child’s best interests was correct.

The justice cautioned that the court was not telling the trial judge how to rule on remand, or whether to hear new evidence.

In an unpublished portion of the opinion, Perren rejected the father’s contention that had had a due process right to earlier notice of the proceedings. The father said he was not notified until after the case was set for mediation, which is the point at which notice is statutorily required.

Perren said there was “no merit or support” for the contention that earlier notice was constitutionally required, since the father received notice in time to participate in the hearings that affected his rights.

The case is In re Marriage of W., B161235.


Copyright 2003, Metropolitan News Company