Children, Grandparents, the Constitution, and You
An often heated and controversial issue in Family Court are the rights, if any, of grandparents to obtain Court ordered visitation with their grandchildren. Quite often, the scenario is that the parents separate, one parent is not involved with the children (due to death, incarceration, etc.) and the grandparents fear they will never see their grandchildren again. Courts have wrestled with the notions of autonomy, individual liberties, the best interests of the children, the Constitution, and other important public policy concerns when deciding whether to grant Court ordered visitation to grandparents.
In 2000, the United States Supreme Court decided the landmark case for grandparent and other non-parent visitation, Troxel v. Granville (2000) 530 U.S. 57. In that case, father had passed away and mother vehemently opposed visitation to the paternal grandparents. The Supreme Court held that the Washington law providing that any person may petition the Court for visitation, which could be granted upon finding such visitation to be in the best interests of the child, violated the substantive due process rights of the biological parent(s). The Supreme Court opined that parents who are deemed fit to raise their own children have the sole ability to be responsible for the “care, custody and control” of those children. So, in essence, if the mother wanted to deny visitation to the grandparents, she was well within her constitutionally guaranteed rights to do so.
The Troxel case set a clear precedent rooted in the U.S. Constitution, however, state legislatures have fashioned laws to get around what seems to be a clear directive. Family Code Section 3104 provides the benchmark for grandparent visitation in California. Under that law, grandparents can petition the Court for visitation if the parents are currently living separately and apart on a permanent or indefinite basis, one of the parents has been absent for more than one month and cannot be found, one of the parents joins in the petition with the grandparents, the child is not residing with either parent, the child has been adopted by a step-parent, or one of the parents is incarcerated or involuntarily institutionalized. The grandparents must convince the Court that visitation is in the best interests of the child based on a pre-existing grandparent/grandchild relationship. Family Code Section 3104 contains a rebuttable presumption affecting the burden of proof that the visitation by a grandparent is not in the best interest of a minor child if the child’s parents agree that the grandparent should not be granted visitation.
In Marriage of Harris, (2004), 34 Cal. 4th 210, a Trial Court granted visitation to the paternal grandparents over the objection of the mother. The Supreme Court of California, although heavily divided on the issue, upheld the trial Court’s ruling. The Court noted that this case was distinguishable from Troxel because the father, who retained parental rights and was deemed “fit,” consented to grandparent visitation. The Court held that mother’s constitutional rights, as framed in Troxel, were not violated; and, thus, the Order should stand.
Another interesting case is Fenn v. Sherriff, (2003) 109 Cal. App. 4th 1466, where the grandparents petitioned for a Court Order allowing them visitation with their grandchildren following the death of their daughter. The children’s father opposed the petition on the grounds that he and his new wife, who had adopted the children, both objected to Court ordered visitation. The Court held that although the decision of fit parents regarding grandparent visitation was entitled to special weight, the fundamental due process right of parents to make decisions regarding care, custody, and control of children did not preclude the Court from ordering grandparent visitation over the parents’ objection.
Family Court can grant visitation to grandparents in certain circumstances when the Judge determines that visitation would be in the best interests of the child. However, Courts would be hard pressed by the requirements of the U.S. Constitution to force parents to facilitate visitation to grandparents when they are deemed fit by the Court, neither of the parents consents to visitation, and both are actively involved in the child’s life.