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Child Custody and Visitation : ”Fit Parent” Presumption Is Overcome When Parent’s Objections to Visitation Lack Credibility Cal Family Law Monthly December 1, 2011

By

Commentary
Stephen B. Ruben

We now have a definitive California decision following the landmark U.S. Supreme Court case of Troxel v. Granville (2000) 530 U.S. 57, involving a grandparent whose adult child has died, that actually authorizes visitation with her grandchildren over the objection of the surviving parent. In Troxel, the trial court allowed two parents of a deceased parent to have more visitation with their grandchildren than the surviving parent was willing to allow. The Supreme Court looked to a state law of Washington that authorized a trial court to ”grant any person” visitation as long as such visitation was in the best interest of the child. The Supreme Court in Troxel held that the Washington statute, as applied, unconstitutionally infringed on the fundamental parental right to make decisions concerning the care, custody, and control of the parent’s children.

Many of us in the family law field believed that our Family Code Section 3102 would meet the test in authorizing grandparent visitation. However as noted in Hoag v. Diedjomahor, in various California appellate court decisions, Family Code Section 3102 was deemed unconstitutional as applied and no grandparent visitation was ordered [see Zasueta; Punsly; Kyle O.].

Given this appellate history of rejecting grandparents’ visitation rights, what was the rationale or ”tipping point” for granting the visitation here? First, Father did not help himself in not testifying at the trial. Moreover, his representation had shown no reasonable or credible objection to the visitation other than for retaliation to grandmother seeking guardianship. His demand that the children be available for regular study hour did not ring true considering that the children were age one and three. Father also objected to any visitation because he did not want to be bound by a schedule. However, he proposed nothing in return. To add to the mix, his own counsel at the closing argument conceded that visitation with the grandmother was in the children’s best interest. The bottom line is that (1) Father’s lack of a clear road map setting forth the conditions of grandparent visitation, and (2) the lack of strong advocacy, were the primary factors that determined grandmother’s successful request for visitation.

 Practice Pointer. Given the extensive relationship both children had with Grandmother, perhaps, the more constructive litigation approach would have been to propose a reasonable limited access schedule that took into account Father’s right to ”a preemptive strike”, and would have been given special weight in these court proceedings. Not proposing any visitation places the surviving parent at risk for a visitation schedule in which the trial court has very little knowledge and acts in a perfunctory fashion.

 My recommendation in representing the surviving parent when there is a grandparent visitation request is to be open, receptive, and active regarding any proposal for visitation with grandparents. Your client will have an opportunity to construct a visitation plan that will be more conducive to his or her greater parenting responsibility as the surviving parent. Your role as his or her legal counsel is to reach a delicate balance. I also strongly urge that you retain a highly skilled coparent counselor to help facilitate this goal. After all, a grandparent has lost his or her son or daughter. They simply do not want to lose their grandchildren as well.

References: CALIFORNIA FAMILY LAW PRACTICE AND PROCEDURE, 2nd ed., §§ 32.06[2][b], 33.25[2],[4] (grandparents’ visitation rights); CALIFORNIA FAMILY LAW LITIGATION GUIDE, Unit 31 (custody and visitation).

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