A case from Ventura County shows how the California family law courts continue to wrestle with grandparent visitation. More specifically, how should the court interfere with a sole surviving parent's rights as a parent, when fostering the natural desire of the grandparent whose child has died, to see the grandchild? For you legalphiles the opinion is important because, for the first time, a court determines that a grandparent must prove by clear and convincing evidence that the court's denial of visitation is not in the child's best interest. The facts are not uncommon.
In December 2006 Rochelle Thatcher (mother) gave birth to grandchild. The father was grandmother's son. Mother and father were not married. Mother has physical custody of the grandchild. Grandmother and mother "do not get along." Among other disputes, they had differences of opinion concerning father's long-term use of drugs. Father died in 2010 of a drug overdose and left two suicide notes. Grandmother disputed the coroner's determination of death by suicide and told the coroner that mother may have been responsible for his death. Their hostility was open and clear.
Father had previously filed a "Petition to Establish Parental Relationship" and grandmother petitioned for joinder. Grandmother claimed that she should be joined in the action "to assert her visitation rights" pursuant to section 3102. Mother opposed joinder and grandparent visitation. The trial court granted the petition for joinder.
In June 2010 the trial court conducted a lengthy evidentiary hearing on visitation. Thereafter, it issued a written ruling which could serve as a "text book example" of how a trial court should proceed. (See e.g. People v. Rosalez (1979) 89 Cal.App.3d 789, 792.) The trial court denied grandmother's request for visitation. The court stated that its decision was based on "[d]eclarations of the parties and witnesses" and on testimony at the hearing. It expressed "great concern over [grandmother's] veracity." It also noted that, although grandmother had shown that she had a relationship with grandchild, she had failed to show "a deep and abiding relationship." The trial court found that "Grandmother's relationship with [grandchild] was rather limited to interaction with [grandchild] during [grandchild's] supervised visits with Father, largely due to the fact that Grandmother was the court-appointed supervisor for Father's visits with [grandchild]."
The trial court summarized the relevant law as follows: "The case law applicable to Section 3102 requires the Court to apply a rebuttable presumption that a fit parent will act in the best interest of her child. This presumption can only be overcome by clear and convincing evidence that denial of the grandparent visitation would be detrimental to the child." The court concluded: "[N]o evidence was presented to the Court to suggest that Mother is an unfit parent. As such, the Court . . . finds that Grandmother has not provided clear and convincing evidence to rebut the presumption that Mother is acting in the best interest of [grandchild] in denying visitation to Grandmother at this time or that denial of visitation with Grandmother would be detrimental to [grandchild]." The court went on to find that, regardless of whether the "detrimental" requirement was satisfied, the granting of visitation to grandmother would not be in grandchild's best interest: "Even if the Court were to find that Grandmother had overcome the presumption by clear and convincing evidence that denial of the visitation by Grandmother was detrimental to [grandchild], the Court hereby finds that it would not be in [grandchild's] best interest to interject court-ordered visitation with Grandmother, particularly in light of the longstanding animosity between Mother and Grandmother."
As we indicated in In re Marriage of Greenberg (2011) 194 Cal.App.4th 1095) the trial court's comment on grandmother's veracity is tantamount to an "adverse factual finding." This is a poor platform upon which to predicate a successful appeal. (Id., at p. 1099.)
In affirming the trial court, the appellate presents its on succinct statement on the law of grandparent visitation:
"Grandparents' rights to court-ordered visitation with their grandchildren are purely statutory. [Citation.]" (In re Marriage of Harris (2004) 34 Cal.4th 210, 219.) The applicable statute here, section 3102, provides in relevant part: "a) If either parent of an unemancipated minor child is deceased, the . . . grandparents of the deceased parent may be granted reasonable visitation with the child during the child's minority upon a finding that the visitation would be in the best interest of the minor child."
Grandmother contends that the trial court erred in applying the clear and convincing burden. We disagree with her and agree with the trial court's legal conclusion. We hold as follows: To overcome the presumption that a fit parent will act in the best interest of the grandchild, a grandparent has the burden of proof and must show, by clear and convincing evidence, that denial of visitation is not in the best interest of the grandchild, i.e., denial of visitation would be detrimental to the grandchild. The fair import of the word "detriment" is damage, harm, or loss. (See American Heritage Dict. (2d college ed. 1982) P. 388, col. 2.) If grandparent visitation is in the grandchild's "best interest," it is not "detrimental." If grandparent visitation is not in the grandchild's "best interest," it is "detrimental." (In re Randlyanne G. (2002) 97 Cal.App.4th 1156, 1169; superseded by statute on another ground as stated in In re S.B. (2004) 32 Cal.4th 1287, 1294-1295.) . . .
There is no question that a grandparent has an important interest in visiting with a grandchild. But the higher degree of the burden of proof that we adopt simply demonstrates that there is a preference in favor of the presumably correct choice of a fit sole surviving parent. Such a choice is "first."
Please click here to read the original Rich v Thatcher opinion.
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