Grandparent Visitation Rights Still Exist
A big misconception within our legal community is that there is no such thing "grandparent rights" in the State of California
. I am often amazed to hear what other family law attorneys are telling people who have questions regarding this issue. Contrary to popular belief, many grandparents are afforded visitation with their grandchildren in the State of California.
Although grandparent visitation was significantly curtailed several years ago as a result of a United States Supreme Court decision, entitled Troxel v. Granville, the California Family Code section on point is still in effect and has survived constitutional challenges. In fact, Family Code 3103 and 3104 are still entitled "Grandparent's Rights." Without a doubt the Troxel decision significantly curtailed the trial court's ability to award grandparent visitation to the extent that it commands the court to presume that the surviving parent's objection to grandparent visitation is relevant to the best interest of the children. However, as we see in a recently published case entitled In Re: Marriage of Hoag v. Dieiomahor, the Troxel decision does not mean that the surviving parent is free to use the denial of visitation as "Big Bertha" in his or her personal war with the grandparents.
Hoag v Dieiomahor
The facts of Hoag and Dieiomahor are worthy of review for anyone interested in learning about grandparent visitation. The parties married in 2005, and they lived with the wife's mother in the City of La Habra and continued to live there while their first child was born in 2006.
After the first child was born the parties separated, at which time the father moved to an apartment in Desert Hot Springs. While the father was living in Desert Hot Springs, the mother and child continued living with the grandmother in La Habra. The parties then reconciled and the mother moved to Desert Hot Springs with her first child and with the grandmother. The parties then gave birth to a second child in 2008. All this time, the grandmother continued living and caring for the children.
In February 2009, the mother filed for dissolution of marriage. Upon separation, the mother, her two children, and their grandmother moved in with another family member. Sadly, the mother died unexpectedly later that year.
After the mother died, the two children continued living with their grandmother and uncle. The father visited the children every couple of days, until the grandmother threatened to file guardianship. The father then demanded that the children move in with him and cut off all contact with the grandmother.
In an attempt to remain close to the children, the grandmother moved into the same apartment complex as the father. However, the father continued to deny the grandmother reasonable visitation. Consequently, the grandmother filed an Order to Show Cause for visitation with her two grandchildren. The trial court found that the father's offers of reasonable visitation were feigned at best and without any substance. The trial court also determined that visitation with grandmother was in the best interest of the children. Accordingly, the trial court granted the grandmother's petition and ordered the same visitation as it previously had when it ordered temporary orders.
The father appealed, but the California Court of Appeal affirmed the trial court's decision. The Court of Appeal specifically found that the trial court gave appropriate weight to the father's visitation decisions, but properly found that the presumption that they were valid had been overcome. Furthermore, the Court of Appeal held that the grandmother was not required to request voluntary visitation before filing her petition for visitation.
Summary
This case is obviously a favorable decision for those of us who believe that grandparent visitation is important and for those of us who recognize that most children are better off having relationships with their grandparents. However, it is important that we take from this decision that the grandparent's pre-existing relationship with the children will be a very important fact. Furthermore, based on another recently published California opinion, entitled, Rich v. Thatcher, we know that the proper legal standard applied by the trial court is the "clear and convincing standard" which requires a heightened degree of proof. Grandparents wishing to obtain visitation with their grandchildren need to know that the court must give great deference to the surviving parent's decision and if the surviving parent makes reasonable offers of visitation the court is likely to defer to their decision.
The bottom line is that grandparents who desire visitation with their grandchildren should not wave the white flag before consulting with a knowledgeable family law attorney. After all, the last thing that anyone wants to see is grandchildren being deprived from loving relationships with their grandparents.
by: Donald P. Schweitzer
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