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Posted on June 16, 2014 in Child Custody

On its face, Family Code section 3102 allows for a grandparent to have visitation with his or her grandchild where one parent is deceased. The practical application of this statute has been greatly curtailed by the United States Supreme Court case, Troxel v. Granville and its progeny. (Troxel v. Granville (2000) 530 U.S. 57.) As noted below, in cases where the surviving parent is not unfit and offers the grandparent meaningful visitation, the Courts are restricted under the Federal Constitution from entering any visitation order in favor of the grandparent in any fashion whatsoever.

In Troxel, the United States Supreme Court granted review and affirmed the Washington Supreme Court’s decision. The United States Supreme Court found that since the Mother was a fit parent and that Mother “did not oppose visitation, but instead asked that the duration of any visitation order be shorter,” any visitation order would have been an “unconstitutional infringement on [Mother’s] fundamental right to make decisions concerning the care, custody, and control of her [children.]” (Troxel v. Granville, supra, 530 U.S at 71.) The United States Supreme Court did not remand the case for further proceedings and found that since the visitation order violated the constitution, there were no grounds to an enter a visitation order of any kind.

Basically, if the only surviving parent is fit and offers the the grandparent meaningful visitation, the Court typically must defer to the wishes of the parent. The same rule applies if both parents are alive and feel the same about restricting grandparent visitation.

The opinion in Troxel v. Granville has been misconstrued by many a trial court in California, leading to several published opinions reversing trial court orders that granted grandparent visitation over a surviving parent’s objection.

In Punsly v. Ho, the Court reversed the trial court’s decision to order visitation because of the surviving Mother’s “fitness as a parent and her willingness to voluntarily schedule visitation.” (Punsly v. Ho (2001) 87 Cal.App.4th 1099, 1111.) As in Troxel, the appeals court did not remand for further proceedings, but directed the trial court to vacate its order of visitation and enter a new order denying the visitation request altogether. There were no grounds to enter a visitation order of any kind.

In Kyle O. v. Donald R., the Court held that “a fit parent…who agreed to allow visitation, had the fundamental right as a parent to prefer flexible unscheduled visitation.” (Kyle O. v. Donald R (2000) 85 Cal.App.4th 848, 863-864.) When the trial court imposed a schedule over the objection of father, the appeals court held that application of Family Code section 3102 “unduly infringed upon [Father’s] fundamental parenting right to make decisions about the care, custody and control of his daughter.” (Id. at 864.) As in Troxel and Punsly v. Ho, the trial court was directed to vacate its order of visitation and enter a new order denying the visitation request altogether. There were no grounds to enter a visitation order of any kind.

In IanJ. v. Peter M., the Court of Appeals held that “requiring unsupervised visitation [over the objection of the surviving parent] unlawfully intrudes on [the surviving parent’s] right to make decisions with respect to [the children’s] well-being…” The Court held that “the grandparents…were required to show clear and convincing evidence that…unsupervised visitation…was in the child’s best interests.” The Court found that since the surviving parent’s concerns about the grandparents were legitimate, the surviving parent’s insistence on supervised visitation had to be respected.

Often, we deal with cases where both parents are alive and only one parent objects to grandparent visitation. The law inTroxel doesn’t apply in these types of situation because one surviving parent wants the visitation. This usually results in the grandparents joining the case and receiving some sort of visitation if the court deems it in the best interests of the child.

Grandparent visitation can be quite complicated. If you have questions about grandparent visitation in California, contact our firm and we can help you.