Divorce With Respect

Granting Grandparent Visitation Against a Parents Wishes in California

Child custody and visitation issues often give rise to the most contentious disputes in a California divorce. If parents cannot agree about living arrangements, vacation schedules and the best educational environment for their child or children, such decisions might have to be made by a family court judge based on his or her assessment of the best interests of the children and the parents’ capabilities.

A recent California Court of Appeal opinion considered a less common scenario: the court’s grant of visitation to a grandparent over a parent’s objection. The reason for the maternal grandmother’s petition for visitation rights was the death of her daughter, the mother of both of the couple’s daughters. The couple had lived at the grandmother’s home, as had the mother and children alone during a period of legal separation. After reconciliation, the grandmother had moved in with the family.

Soon thereafter, the mother filed for divorce, but she died barely a month later. The grandmother quickly petitioned for guardianship, alleging that the father was an unfit parent, and he countered by presenting evidence of her previous drug use and past loss of custody of her own children years before. The court found no concern based on a Child Protective Services investigation and did not grant the guardianship request to the grandmother, but it did grant her temporary visitation.

Several months later, the grandmother petitioned for permanent visitation rights. The court granted the petition based on a mediator’s recommendation of a visitation schedule that included three hours of weekly visitation plus every other weekend. The court’s decision was based largely on its finding that the father was opposed to reasonable visitation and that his offers were “feigned at best and without any substance.”

Appellate Court Upholds Grant of Visitation to Grandmother

The father appealed the family law judgment based on his constitutional due process rights. The California Court of Appeal reviewed the case based largely on the standard provided by the U.S. Supreme Court in Troxel v. Granville, which stated that the Due Process Clause does not permit state governments to infringe on the fundamental rights of parents to make child-rearing decisions “simply because a state judge believes a ‘better’ decision could be made.”

On review, the California court emphasized that child-rearing decisions are not immune to judicial review. While the law presumes that a parent is acting in his or her children’s best interests in proceedings involving a non-parent who seeks custodial recognition, the father had acknowledged to the trial court that visitation with the children was in the children’s best interests. Therefore, denial of visitation was essentially spiteful, and the court’s grant of grandparent visitation was proper.

This case shows how the specific circumstances behind every California family law dispute can make a considerable difference in the outcome. A California divorce lawyer will help a client understand the facts of his or her situation in light of current legal standards.

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