It seems intuitive enough that parents should have ultimate control over who is be permitted to visit with their child(ren). Right? This isn’t always the case in California, if the judicial officer believes a pre-existing relationship between the grandparents and the grandchild(ren) exists such that promoting their bond is in child(ren)’s best interest, and on balance the interest of the child(ren) to visit the grandparents outweighs the right of the parents to exercise their parental authority.
In Jeffrey D. Stuard, et al. v. Matthew Stuard (2016), the Third District Court of Appeal affirmed all of the family court’s rulings on appeal with the exception of the order for Father’s anger-management counseling, which the appellate court remanded for further statutory findings pursuant to Family Code section 3190 and to limit such counseling to the statutory maximum of one year.
Matthew and Rebekah are the parents of the minor daughter, Riley, born in 2004. Jeff and Cindy, who were present at the birth, are Riley’s paternal grandparents. Jeff retired in 2005 and became Riley’s primary caregiver. Around that time, on Matthew suggestion and to facilitate the care of Riley, Jeff and Cindy relocated from Sacramento to Roseville to reside three blocks from Matthew, Rebekah, and Riley. Jeff referred to Riley as his “golden granddaughter,” and (for purposes of brevity) the appellate opinion implies the grandparents developed and continued to have a strong bond with Riley.
In 2008, Matthew dropped Riley off at pre-school and Jeff picked her up every day. Cindy testified that during that period, the paternal grandparents were watching Riley 25 days a month. That same year, Matthew and Rebekah separated, resulting in the dissolution of their marriage. After separation, Jeff and Cindy ended up watching Riley even more, including during each parent’s scheduled parenting time while they were at work.
In 2009, Matthew and Riley moved in with Jeff and Cindy, which increased the paternal grandparents’ contact with Riley. “Jeff and Cindy helped her get ready for school, took her to and from school, and watched her until Matthew came home from work, or until Rebekah picked her up to exercise her parenting time with the child. The grandparents also attended various school and sports activities.”
At some point, the relationship between Matthew and his parents went south. Cindy said her son’s personality changed when he began taking ADHD medication. “He became impatient and uncommunicative, was often angry, rude, and argumentative, and routinely made disparaging remarks.” He also isolated himself and the child from his parents after dinner, and Cindy and Jeff had to obtain his permission just to say goodnight to Riley. Matthew was unresponsive when the subject of his behavioral changes, and ultimately Jeff asked that he relocate from Jeff and Cindy’s home.
In 2011, Matthew moved out and told Jeff he’d never see his granddaughter again. Despite this, Matthew brought Riley over to see her grandparents on various occasions including Riley’s seventh birthday. During one of these visits, Riley said she wanted to stay and watch television, and Matthew responded by taking her home. After that, there was little contact. Thereafter, Jeff and Cindy requested visits which never materialized. On one occasion, when they went to Riley’s soccer practice unannounced, Matthew told them to leave or that he would leave with Riley, which he proceeded to do until he saw Jeff and Cindy leaving.
Jeff and Cindy then contacted Rebekah to see if she would agree to Riley having visits with them. Rebekah agreed and the paternal grandparents had visits during her parenting time. They also gained Rebekah’s permission to attend school activities during her parenting time. This arrangement continued through the end of 2011.
Matthew was angry when he found out his parents were seeing Riley during Rebekah’s parenting time. Sometime in 2012, he discussed it with Rebekah who thereafter told Jeff and Cindy to work out their issues directly with Matthew. But rather than go directly to Matthew, Cindy contacted Riley’s soccer coach to get a copy of the schedule, Will (Rebekah’s fiance), and Rebekah’s father for help in seeing Riley, all to know avail.
Jeff and Cindy filed their petition for grandparental visitation in January, 2013. A mediator, Diana Vodrey, was appointed, and joint and separate sessions were held with all of the parties and Riley. “Vodrey found Riley to be a smart and articulate child who was neither withdrawn nor shy. Riley said she was happy at her grandparents‟ house and wanted to see them, asking Vodrey: “Why can‟t I see [my grandparents]? When can I see them?” Vodrey recommended grandparent visitation, explaining this was what Riley wanted, the bond between Riley and her grandparents was “quite strong,” and Jeff and Cindy were capable of adequately caring for her. Vodrey also determined Riley suffered “damage” as the result of her parents’ decision to keep her from her grandparents, explaining: ‘Something was terminated that was very, very important to her. It was ended abruptly. That always hurts children. It‟s an abandonment issue. Someone important in her life left.’ Vodrey further concluded Matthew was ‘angry and controlling’ ‘toward his parents and recommended anger management counseling.'”
An amended petition was filed in July, 2013. The amended petition also requested a Family Code section 271 sanction (in the form of attorney fees), costs in the amount of $2,000.00 for court-ordered mediation, and attorney fees under Family Code section 2030. Matthew and Rebekah opposed the petition.
Trial began in January, 2014, from which the facts above were taken. Additionally, “Matthew testified that after he and Riley moved in with his parents, he became concerned about their behavior, which included them making disparaging remarks about Rebekah to Riley. When he made his [seven] concerns known, they responded by saying he was crazy or making things up. Matthew also testified he believed the litigation was, as he put it, a ‘bullying and intimidation campaign.'”
“Rebekah testified she and Matthew had difficulties co-parenting while married and initially after they separated, but became good co-parents following their divorce. As she explained her opposition to grandparent visitation, when Matthew came to her with his concerns about his parents visiting Riley, she decided to ‘respect him as a parent and validate his concerns’ by withdrawing her permission until they had worked things out with him, at which point Cindy ‘circumvented’ her and went to her fiancé. Rebekah continued: ‘Grandparents have rights, but it does not supersede your parental authority, and my big concern and what I heard during Cindy’s testimony yesterday and Jeff’s today is that if they think that they are right that they’re going to do what they want to do, regardless of what I say, and for me when it comes to my child that I am in charge of, that I gave birth to, that I’m responsible for, that’s not okay, and if you want to spend time with her and love her you have to respect me as a parent and my decisions, whether you like them or not, and if I can’t trust you to do that, then I can’t trust you to be around her.’” (This is very good argument, but, unfortunately, not facts with which to rebut the mediator’s assertion that the parents have harmed Riley by removing Jeff and Cindy from her life.)
The family court judge awarded Jeff and Cindy $3,000 in attorney fees under Family Code section 2030, $3,000 in sanctions (in the form of attorney fees and costs) under Family Code section 271, and $2,000 in counseling expenses under Family Code section 3104, all jointly and severally payable by Matthew and Rebekah. Finally, the trial court ordered Matthew to attend anger-management counseling at his own expense.
Law and Analysis
Three California statutes expressly address grandparental visitation:
- Family Code section 3102, which permits visitation by a deceased parent’s children, siblings, parents, and grandparents if such visitation would be in the best interests of the child;
- Family Code section 3103, which permits a court in pending proceedings involving the custody of a child to grant grandparent visitation; and,
- Family Code section 3104, which permits grandparents to petition for visitation if the grandchild’s parents are not married or if certain other conditions are met. (Marriage of Harris (2004).)
This case involves Family Code section 3104, which permits reasonable visitation to a grandparent if the family court judge does two things: (1) Finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child; and, (2) Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.” (Fam. Code sec. 3104(a).)
Because Riley’s parents were living, grounds for the grandparents to file the petition under Family Code section 3104. (Fam. Code sec. 3104(b)(1).)
There is “a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child” in two situations: “the natural or adoptive parents agree that the grandparent should not be granted visitation rights” (Fam. Code sec. 3104(e)); and “the parent who has been awarded sole legal and physical custody of the child in another proceeding, or the parent with whom the child resides if there is currently no operative order objects to visitation by the grandparent” (Fam. Code sec. 3104(f)). The presumption protects parental autonomy while at the same time recognizing “the importance of family ties and the value of a relationship between grandparents and grandchildren.” (Lopez v. Martinez (2000).) “[T]he key to understanding the Legislature‟s intent is to remember the primary impetus behind the provision was not the strengthening of grandparental visitation rights, but the protection of the best interest of the child.” (Lopez v. Martinez (2000).) Here, because both of Riley’s parents oppose the visitation, Jeff and Cindy must rebut the presumption that visitation should not be granted.
Equal Protection Challenge
Matthew challenged Family Code section 3104 under both the 14th Amendment and the California Constitution as facially unconstitutional and unconstitutional as applied.
“Matthew’s equal protection challenge under the 14th Amendment’s Equal Protection Clause and the California Constitution fails because he did not bring the challenge in the family court, first making the argument on appeal, and because he did not show how he is similarly situated to parents not subject to a petition for grandparental visitation. In the trial court, Matthew and Rebekah challenged the constitutional validity of section 3104 by citing Troxel v. Granville (2000). . . . However, Troxel considered only an as-applied challenge on substantive due process grounds to a Washington state grandparental visitation statute. An equal protection challenge differs in that it focuses on whether similarly situated groups receive constitutionally impermissible disparate treatment.
“’Equal protection under the law means that parties similarly situated with respect to a law must be treated alike under the law. [Citations.] That does not mean, however, that differential treatment is always unconstitutional. Where a statute makes distinctions involving inherently suspect classifications or fundamental rights, it is subject to ‘strict scrutiny’ and may be upheld only if the government establishes the distinction is necessary to achieve a compelling state interest. [Citation.] Most legislation, however, is reviewed only to determine whether the challenged classification bears a rational relationship to a legitimate state interest. [Citation.] In areas of social or economic policy not involving suspect classifications or fundamental rights, a statute must be upheld so long as there is any reasonably conceivable set of facts that provides a ‘rational basis’ for the classification. [Citations.]’
“‘Moreover, in those cases not involving suspect classifications or fundamental rights, it is the party challenging the statute who must demonstrate that the difference in treatment is unrelated to the achievement of any legitimate government purpose. [Citation.] This means that the challenging party must essentially negate every conceivable legitimate basis which might support the statutory classification. [Citation.] Because a legislative body is not required to articulate its reasons for enacting a statute, whether the conceived reason supporting the statute actually motivated the legislative body is entirely irrelevant for constitutional purposes. [Citations.] ‘In other words, a legislative choice is not subject to courtroom factfinding and may be based on rational
speculation unsupported by evidence or empirical data.’ [Citation.] Under the rational basis test, a strong presumption favors the validity of the challenged statute. [Citations.] (420 Caregivers, LLC v. City of Los Angeles (2012) [citation].) “
Because Matthew was challenging the application of section 3104, he had the burden to demonstrate he is similarly situated to parents who are not subject to a grandparental visitation petition under Family section 3104, and he presented no argument in the trial court that his equal protection right was violated by disparate treatment from a similarly situated group. Therefore, he did not preserve the equal protection issue for appellate review.
Substantive Due Process Challenge
Matthew also challenged Family Code section 3104 under both the 14th Amendment and the California Constitution as violating substantive due process as applied. At trial, Matthew submitted a statement of issues that relied on Troxel, to argue he had fundamental parental rights to make decisions regarding visitation of his child with third parties. “Matthew‟s substantive due process argument rests on the suggestion his and Rebekah’s undisputed parental fitness stands as an impermeable barrier to a grandparent visitation order. The California Supreme Court rejected a similar argument regarding section 3104 in [Marriage of Harris (2004)] Harris involved a petition by paternal grandparents for visitation of a grandchild who had lived with them for a week in
California until the mother and child moved out. [Citation.] Mother, who had sole legal and physical custody of the child, moved about for several years and eventually settled in Utah. [Citation.] The paternal grandparents attempted to maintain their relationship with the grandchild by flying from California to visit their granddaughter while mother increasingly withheld access to the child. [Citation.] The paternal grandparents filed a petition for grandparent visitation that the trial court granted and the Court of Appeal reversed on grounds the visitation order violated mother‟s federal and state constitutional rights. [Citation.] The California Supreme Court granted review and reversed, holding that ‘section 3104 controls in this case and that the statute is constitutional, both on its face and as applied.’ [Citation.] Although father continued to support the paternal grandparents’ visitation petition, his parental rights were terminated after the trial court issued the visitation order. [Citation.]”
“In contrast to the “breathtakingly broad” Washington statute in Troxel [citation], California’s ‘Legislature limited section 3104 by creating rebuttable presumptions against grandparent visitation . . .'”
“This court has previously held ‘that because the fundamental parenting right recognized by California courts is not absolute, the opposition of two fit parents to court-ordered grandparent visitation does not, by itself, preclude the court from ordering visitation.” (Fenn v. Sherriff (2003).)
“Here, Jeff and Cindy have been an integral part of Riley‟s life, from her birth until several years later when Matthew began blocking visitation with her. As the trial court noted, both of Riley‟s parents acceded to Jeff and Cindy‟s participation in Riley‟s daily life, school activities, and social events. The disruption of the grandparent-grandchild bond in this case follows the disruption of another bond –- that between Matthew and Rebekah and its attending consequences for Riley. The continuance of a preexisting relationship with grandparents can provide stable and dependable nurturing the grandchild can continue to count on in the midst of a rift in the parental relationship. Thus, what Matthew seeks to accomplish by his reliance on substantive due process is to disrupt a relationship the court-appointed mediator characterized as a “strong” bond between Riley and her paternal grandparents. The Legislature, however, did not violate Matthew‟s substantive due process rights by safeguarding Riley‟s relationship with her grandparents during a time when her parents separated and ended their marriage. We conclude the trial court did not abuse its discretion in applying section 3104 after finding a preexisting grandparent-grandchild relationship that is in Riley‟s best interest to continue.”
Order for Anger-Management Counseling
Family Code section 3190 (which applies only to family court, not juvenile court (per In re Chantel (1996)) provides that the trial court “may require parents or any other party involved in a . . . visitation dispute . . . to participate in outpatient counseling with a licensed mental health professional . . . for not more than one year” if the dispute “poses a substantial danger to the best interest of the child” and that “[t]he counseling is in the best interest of the child.” (Fam. Code sec. 3190(a)(1),(2).) Ordering such counseling requires that the court, in its finding, set forth reasons why it has found the dispute poses a substantial danger to the best interest of the child and the counseling is in the best interest of the child; and, why it found he financial burden created by the court order for counseling does not otherwise jeopardize a party’s other financial obligations. (Family Code sec. 3190(d).) Because the family court judge made no such findings nor gave reasons for why and did not limit the duration of such counseling to a year, the Third District reversed and remand the issue for further proceedings in the family court.