Metropolitan News-Enterprise


Tuesday, August 24, 2004


Page 1


Divided State Supreme Court Rules:

Statutes on Grandparent Visitation Pass Constitutional Muster


By DAVID WATSON, Staff Writer


The state Supreme Court yesterday rejected a constitutional challenge to California’s statutory scheme governing grandparent visitation, but ruled that a San Diego Superior Court judge erred in failing to apply the statute’s presumption against ordering such visitation where the custodial parent opposes it.

Justice Carlos Moreno, joined by Justices Joyce L. Kennard and Kathryn M. Werdeger and by Chief Justice Ronald M. George, said Family Code Secs. 3103 and 3104 do not run afoul of the U.S. Supreme Court’s determination in Troxel v. Granville (2000) 530 U.S. 57 that parents have a fundamental constitutional right to make decisions concerning the care, custody, and control of their children. The code sections permit courts to order grandparent visitation, but establish a rebuttable presumption that such visitation is not in the best interests of the child in the face of parental opposition.

Sec. 3104 also provides that a court must find a “preexisting relationship between the grandparent and the grandchild that has engendered a bond” important enough to justify the order. Sec. 3103 does not contain that limitation.

Scope of Sections

Moreno said Sec. 3103 applies only during dissolution proceedings, before a judgment has been entered and custody determined. Noting that Sec. 3104 states its presumption applies where an objection to visitation has been made by “the parent who has been awarded sole legal and physical custody of the child,” the justice reasoned that the section was intended to control after a divorce is final and a custody award has been made.

That was the situation of Karen Butler, who separated from her husband shortly before her daughter Emily was born in 1994, Moreno noted. She was granted a divorce and sole legal and physical custody of the child the next year.

The three justices who authored separate dissenting opinions did not take issue with that portion of Moreno’s opinion, but questioned whether the court should have reached the constitutional question in light of the fact that the trial judge who ordered visitation cited only the best interests of the child and did not apply the statutory presumption.

Dissenter’s Comments

Justice Marvin Baxter called the court’s ruling “premature,” adding that the court was enunciating a “new policy” of reaching constitutional questions even where the lower court’s action was being reversed on statutory grounds.

“Until today, judicial restraint had led us to construe statutes, if possible, so as to avoid constitutional questions,” Baxter commented.

Justice Ming Chin described the court’s conclusion on the constitutional issue as “unprecedented and troubling,” explaining:

“In my view, the relevant authority establishes that court-ordered visitation by a grandparent against the wishes of a fit custodial parent infringes on that parent’s fundamental right to direct his or her child’s upbringing, and that this state infringement on a parent’s fundamental right is unconstitutional absent clear and convincing evidence to rebut the presumption under section 3104, subdivision (f), that such visitation is not in the child’s best interests.”

Justice Janice Rogers Brown also dissented, saying she agreed with Baxter and that the court had gone too far in ruling that “an order imposing grandparent visitation would never infringe on a sole custodial parent’s constitutional rights if the child’s noncustodial parent, who in this case had no visitation rights, had not seen his five-year-old daughter in five years, and has since had his own parental rights terminated, supported such visitation.”

Moreno noted there was no majority opinion in Troxel and distinguished the Washington state statute considered by the nation’s high court in that case, which permitted “any person” to petition for visitation rights at “any time.”

“Section 3104 is more narrow, permitting grandparents of a minor child to petition the court for visitation rights only if the child’s parents are not married or are separated or if other similar conditions apply,” he observed, pointing out that it also applies only where the court finds a preexisting bond.

He added:

“Neither does the decision in Troxel support the mother’s argument here that section 3104 violates the federal Constitution as applied in this case. Troxel involved an order for grandparent visitation that was opposed by the child’s sole surviving fit parent. That was not the situation before the superior court in this case when it issued the visitation order under review. Rather, the parents of the child in the present case disagreed concerning grandparent visitation, and the father had not been declared unfit and his parental rights had not yet been terminated. Nothing in the decision in Troxel suggests that an order for grandparent visitation that is supported by one parent infringes upon the parental rights of the other parent.”

The case is In re Marriage of Harris, 04 S.O.S. 4616.


Copyright 2004, Metropolitan News Company