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VOLUME 16 | NUMBER 5 | AUGUST/ SEPTEMBER 2016

Good News for Grandparents

Lucy A. Vartanian

Editor's Note: Ms. Vartanian's focus is exclusively family law. She is an associate with Feinberg, Mindel, Brandt, & Klein, LLP.

Ask any seasoned family law attorney how many grandparent visitation cases they've handled and it's likely the answer is none. Among other reasons, grandparents may be reluctant to litigate for a variety of personal reasons, but from a legal perspective, attorneys may be reluctant to take on a litigious grandparent because the law is skewed against granting grandparent visitation. Not surprisingly, the established law on the issue of grandparent visitation is severely limited given the unwillingness of states to interfere with what is "perhaps the oldest of the fundamental liberty interests" – "the interest of parents in the care, custody and control of their children." Troxel v. Granville 530 U.S. 57 (2000). With the recent Stuard v. Stuard Super. Ct. No. 12FL07391 decision, things might be looking up for grandparents.

As stated in Stuard, grandparents' rights to court-ordered visitation with their grandchildren are purely statutory. A line of California cases, including In re Marriage of Harris (2004) 34 Cal. 4th 210 and Finberg v. Manset (2014) 223 Cal.App.4th 529 directly address grandparent visitation rights as set forth in Family Code §§ 3102, 3103, and 3104. Generally, the odds of a grandparent prevailing on a petition for visitation have been bleak due to the stringent requirements to even initiate a grandparent visitation action. For example, Family Code § 3102 applies in instances where the parent of a child is deceased; Family Code § 3103 applies in dissolution, nullity, paternity or other custody proceedings between parents; and Family Code § 3104 applies only in instances where the child's parents are unmarried unless a variety of circumstances are met.

In Stuard, Jeff and Cindy filed a petition for visitation with their granddaughter, Riley, pursuant to Family Code § 3104. Riley's parents, Matthew and Rebekah, were divorced. Interestingly, the parent objecting to the visitation was Matthew, Jeff and Cindy's son. Before problems started to develop between Matthew and his parents, Jeff and Cindy had a loving relationship with Riley. At one point, Matthew and Riley even moved in with Jeff and Cindy following his divorce. Ultimately, Matthew's relationship with his parents soured and he refused to allow Riley to have any contact with Jeff and Cindy. Rebekah facilitated visitation with Jeff and Cindy independently, but when tensions escalated, she withdrew herself from the conflict.

The appellate court affirmed the trial court's decision to grant visitation to Jeff and Cindy under section 3104. The Court found that the "rebuttable presumption that the visitation of a grandparent is not in the best interest of a minor child" was overcome and that the two-prong analysis of section 3104 was appropriately applied and satisfied.

The Court also balanced the interests of Riley’s right to visitation with Matthew and Rebekah’s right to exercise authority. In support of his fundamental right to raise a child, Matthew argued that his and Rebekah’s “undisputed parental fitness” was an “impermeable barrier” to an order granting grandparent visitation. The Court flatly rejected this notion and found that section 3104 “reflects a legitimate state interest in preserving an already existing grandparent-grandchild relationship,” which undoubtedly existed between Riley, Jeff and Cindy. Indeed, the Court found that before Matthew blocked visitation, Jeff and Cindy had been intimately involved with Riley’s life. Riley was their “golden granddaughter.”

Parents aligned with Matthew's line of thinking might say that the holding in Stuard v. Stuard infringes on a parent's fundamental right to child rearing and adopts a more "child-centric approach." Others may argue that the case does the right thing by focusing on the best interest of the child and rigidly applying the statute. But what does this case indicate about the future state of third party visitation laws? Is the law becoming more favorable for third party visitation? And more importantly, is the fundamental right to raise a child in jeopardy? (1)



1.Stuard v. Stuard focuses on Family Code § 3104, which sets forth the following in pertinent part: (a) On petition to the court by a grandparent of a minor child, the court may grant reasonable visitation rights to the grandparent if the court does both of the following: (1) Finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child. (2) Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority. (b) A petition for visitation under this section shall not be filed while the natural or adoptive parents are married, unless one or more of the following circumstances exist: (1) The parents are currently living separately and apart on a permanent or indefinite basis. (2) One of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse. (3) One of the parents joins in the petition with the grandparents. (4) The child is not residing with either parent. (5) The child has been adopted by a stepparent. (6) One of the parents is incarcerated or involuntarily institutionalized. At any time that a change of circumstances occurs such that none of these circumstances exist, the parent or parents may move the court to terminate grandparental visitation and the court shall grant the termination... (e) There is a rebuttable presumption that the visitation of a grandparent is not in the best interest of a minor child if the natural or adoptive parents agree that the grandparent should not be granted visitation rights. (f) There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the parent who has been awarded sole legal and physical custody of the child in another proceeding, or the parent with whom the child resides if there is currently no operative custody order objects to visitation by the grandparent.

                                                                                                                                                                         
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