Supreme Court of California Justia
Docket No. S101836
Marr. of Harris



Filed 8/23/04



IN THE SUPREME COURT OF CALIFORNIA



In re the Marriage of KAREN AND

CHARLES ERIK HARRIS.

KAREN BUTLER,

Appellant,

S101836

v.

Ct.App. 4/1 D036144

CHARLES ERIK HARRIS et al.,

San Diego County

Respondents.

Super. Ct. No. D391902 TXA



The superior court granted extensive visitation rights to the paternal

grandparents of a five-year-old girl with the approval of the father but over the

objection of the mother, who has sole custody of the child. Applying the United

States Supreme Court’s decision in Troxel v. Granville (2000) 530 U.S. 57, the

Court of Appeal reversed, holding that the visitation order violated the mother’s

constitutional liberty interest in the custody, care, and control of her child.

For the reasons that follow, we conclude that Family Code section 3104

controls in this case and that the statute is constitutional, both on its face and as

applied. Because the mother had sole custody of the child and objected to

grandparent visitation, Family Code section 3104, subdivision (f), imposed a

rebuttable presumption affecting the burden of proof that grandparent visitation

was not in the child’s best interest. The superior court did not utilize this

1




presumption. Accordingly, we remand the case to permit the superior court to

reconsider its order permitting grandparent visitation in light of the statutory

presumption that grandparent visitation is not in the best interest of the child.

I. FACTS

Appellant Karen Butler (the mother) married respondent Charles Harris

(the father) on January 12, 1994. They separated on October 16, 1994, 10 days

before the birth of their daughter, Emily. The mother filed for dissolution of

marriage three months later, on January 18, 1995.

Clinical Psychologist Daniel O’Roarty, Ph.D., was appointed by the

superior court to conduct a psychological assessment of the parties and reported

that the mother and father met in San Diego in October, 1993, when the mother

was a helicopter pilot in the Navy. They began living together two weeks after

they met, later moving to a boat in the Chula Vista Marina. As noted above, they

married in January, 1994, three months after they met.

The mother claimed that during the marriage the father was psychologically

and physically abusive to her. He hit her and called her names. On one occasion,

he pushed her overboard and then tried to run her over with their dinghy as she

swam to shore. During an altercation when she was six months pregnant, he

kicked her in the stomach.

The father denied these accusations, but admitted using and selling

marijuana and, on one occasion, using crystal methamphetamine, and admitted

striking and biting the mother on several occasions that he described as mutually

combative.

As noted above, the mother left the father shortly before Emily was born

and stayed in hotels and with a friend. She lived with the paternal grandparents,

respondents Leanne and Charles Harris, for more than a week after Emily was

2



born and then moved into a shelter for battered women. She took Emily to visit

the father regularly.

On July 21, 1995, the superior court, pursuant to stipulation of the parties,

bifurcated the issues of child custody and visitation and entered judgment

dissolving the marriage and granting the mother sole legal and physical custody of

Emily, following the recommendation of Dr. O’Roarty. The judgment also

provided that the mother could move to Maryland with Emily on or after August

5, 1995. The father was granted supervised visitation contingent on his

undergoing psychotherapy, drug testing and attending Narcotics Anonymous

meetings. A schedule was established for visitation pending the mother’s move to

Maryland, which permitted the paternal grandparents to be present. Also by

stipulation, the paternal grandparents were joined as parties to the action. They

agreed not to interfere with the mother’s scheduled move to Maryland.

On August 2, 1995, the paternal grandparents filed a motion for visitation,

alleging that the mother would not permit visitation absent a court order. The

paternal grandparents asked that Emily spend 10 days at their home every other

month. The mother’s response noted that Emily was 11 months old and was still

nursing. She asked that all visitation take place in Maryland where she was living

with her parents and be supervised until the paternal grandparents “get therapy on

the issue of abuse.” The mother related that the father had been abused by the

paternal grandfather, but the paternal grandparents denied this accusation. Family

court services counselor Sandra Boyles conducted a mediation session in which

the mother participated by telephone and the parties agreed that the paternal

grandparents would visit Emily in Maryland for approximately 10 days, six times

a year, with no overnight visits. Following a hearing, the court granted the

paternal grandparents visitation with Emily in Maryland with no overnight visits

3



and without the father being present as follows: four visits per year for up to seven

days each in 1996, six visits per year for up to seven days each in 1997, and six

visits per year for up to 10 days each in 1998. The court ordered the grandparents

to attend four counseling sessions to address the issue of abuse.

On April 29, 1996, the mother filed a motion to terminate the paternal

grandparent’s visitation rights, alleging that their visits in January and April of

1996, “were extremely hostile and filled with conflict” and thus had been

detrimental to Emily. The mother declared that Emily had nightmares after the

paternal grandparents’ last visit, cried during her nap times, and clung to the

mother “for days after the visits,” all of which behavior was unusual for her. The

paternal grandparents filed a responsive declaration in which they agreed that the

visits had been hostile, but placed the blame on the mother. Following a hearing,

the court on October 30, 1996 denied the mother’s motion to terminate the

paternal grandparents’ visitation rights and modified visitation to a maximum of

four visits per year for a maximum of seven days each time, to continue until

further order of the court.

On November 1, 1996, the paternal grandparents provided the mother with

30 days’ notice of their intention to visit Emily on December 1, 1996, but received

no response. They traveled to the mother’s residence in Maryland and discovered

that the mother and Emily had moved. The paternal grandparents hired several

private investigators who, many months later, located the mother and the maternal

grandparents in Utah. The mother had married Mark Butler, who had six children.

The paternal grandparents contacted the mother and she agreed to visitation,

which took place in mid-January, 1998.

On January 20, 1998, the court found the mother in contempt for failing to

comply with the court’s orders that she keep the paternal grandparents informed of

4



her current address and permit the scheduled visitation. The court placed the

mother on probation for two years. On July 21, 1998, the mother was ordered to

pay $7,555 in attorney fees and expenses to the paternal grandparents and the

visitation order was modified to permit visitation within a 50-mile radius of the

mother’s home in Utah.

The paternal grandparents had week-long visits with Emily in Utah in

April, July, and October of 1998. The paternal grandparents asked the mother if

they could bring Emily, then 4 years old, to California on their next visit, but the

Mother declined, saying she was “not comfortable sending Emily to California.”

In January of 1999, the paternal grandparents again visited Emily in Utah for

seven days. The mother did not permit overnight visits.

On February 9, 1999, the paternal grandparents filed a motion to modify

the visitation order to permit them to bring Emily to California for visitation and

to permit overnight visits in Utah. On February 24, 1999, the father joined the

paternal grandparents’ request for visitation in California so that the father could

visit Emily while she was in the care of his parents.

On March 17, 1999, pursuant to court order, the mother, the father, and the

paternal grandparents met with family court services counselor Sandra Boyles.

The father requested unsupervised visits with Emily or, at least, visits at his

parents’ home. The father became so agitated and hostile during the conference

that Boyles asked him to leave. Boyles recommended that the father be permitted

visitation only in the presence of a trained supervisor and that Emily not have

contact with her father while in the care of her paternal grandparents. Boyles

recommended that the paternal grandparents continue to have week-long visits

with Emily four times per year until she started school. The next visit was to be in

5



Utah, and Emily was to spend the week with the grandparents at a hotel.

Subsequent visits were to be at the grandparents’ home in California.

On March 31, 1999, the mother filed a declaration objecting to the

recommendation that Emily visit the paternal grandparents in California on the

ground that the grandparents would not be able to protect Emily from her father,

who was violent, had abused the mother, and had threatened to take Emily.

At a hearing on May 5, 1999, the court observed that it understood why the

mother was apprehensive about permitting Emily to visit the paternal grandparents

in California, but added: “I don’t share that apprehension at all.” The court

adopted Boyles’s recommendations permitting the paternal grandparents to have

week-long visits with Emily four times per year until she started school, with the

next visit to take place in Utah and subsequent visits to take place in California.

The court ordered the grandparents to permit no contact between Emily and her

father during these visits. The grandparents subsequently visited Emily in Utah

for a week in April, 1999 and Emily visited the grandparents’ home in California

in October, 1999 and January, 2000.

By letter dated February 5, 2000, the father informed the mother that he had

moved into his parents’ home. The paternal grandparents indicated that,

nevertheless, the father would have no contact with Emily during her next visit.

On May 26, 2000, the paternal grandparents filed an order to show cause

for visitation beginning when Emily started kindergarten in August, 2000. The

grandparents alleged they had had their fourth week-long visit with Emily in

California in April and were planning another before Emily started school. The

grandparents requested the following visitation: two weeks in August, one week

during Christmas/New Years, one week during Easter, and one week during June.

6



In a responsive declaration filed June 12, 2000, the mother objected to

court-ordered visitation, noting that she never would prevent Emily from being

with her paternal grandparents, but believed it was wrong to force Emily to leave

her family against her will. In her supporting points and authorities, the mother

asked that the paternal grandparents’ request for visitation be denied.

On June 19, 2000, the mother, the father, and the paternal grandparents

participated in a mediation session, with family court services counselor James

Bruce. The mother wanted to limit the length of Emily’s visits to one week. She

reluctantly agreed to a two-week visit in June, but wanted one week in August and

no visit during the Christmas holiday. Bruce opined that “the minor benefits from

contact with the paternal grandparents and that it is in her best interest to continue

to have contact with them.” He noted that the mother did not dispute that Emily’s

contact with her paternal grandparents was beneficial, but believed such contact

should not be court ordered. Bruce made the following recommendations, noting

they were “admittedly arbitrary because the undersigned has not met Emily and

does not know her temperament”: visitation for 10 to 11 days twice during the

summer. He deferred “to the wisdom of the court” regarding visitation during the

Christmas holiday.

At a hearing on July 10, 2000, the court stated that it would apply “a best

interest standard” that focused on the “health, safety and welfare” of the child.

The court remarked that it did not question the mother’s motivation to end court-

ordered visitation by the paternal grandparents: “I do think she believes that it is

best for this child if she provides the family unit and she makes the decisions as to

what contact, if any, would exist between other people and this child.” Regarding

the paternal grandparents, the court stated its belief that “they truly love this child

and they care about the child and that they want to continue to have that

7



relationship and that it is very important to them.” The court concluded: “I think

presently, at least, that it is in the best interest of this child to continue to have a

significant relationship with the grandparents,” adding that the court did not

believe “there is any realistic possibility that if I leave this to the mother’s good

graces, essentially as the parent, that she would do anything to encourage the

relationship in spite of what she says. Her actions are absolutely contrary to

that . . . .” The court acknowledged that visitation created practical problems for

the Butler family, but concluded the difficulties did not justify cutting off the

grandparents’ visitation, concluding “that the rewards for the child are greater than

any deficits that we have.” The court noted that its conclusions were “tough calls

because I do have to acknowledge that the grandparents are interfering to some

degree with the mother’s rights as a parent to the extent they exist to raise children

. . . .”

The court awarded the paternal grandparents visitation for 12 days in

August, 12 days in June, and from December 26 to 31. The court ordered that

Emily fly unaccompanied to California on a nonstop flight beginning with the

December visit if permitted by the airlines to do so, and required the mother to

take Emily to the airport in Utah and pick her up.1 The paternal grandparents

further were permitted to take Emily to visit other relatives in or out of California.

The mother appealed and the Court of Appeal reversed, holding that the

visitation order denied the mother due process of law under both the federal and

California Constitutions, explaining that the paternal grandparents should have


1

Pending these proceedings, the Court of Appeal ordered that Emily be

accompanied by one of the paternal grandparents during any travel.

8



been required “to show by clear and convincing evidence that the parents’

decision [to deny or limit visitation] would be detrimental to the child.”

At the request of the mother, and without objection by the paternal

grandparents, we have taken judicial notice of the fact that after this court granted

review, the superior court, on October 28, 2002, terminated the father’s parental

rights.

II. DISCUSSION

Grandparents’ rights to court-ordered visitation with their grandchildren are

purely statutory. (White v. Jacobs (1988) 198 Cal.App.3d 122, 124-125.) Three

California statutes expressly address grandparent visitation: Family Code section

3102,2 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;

section 3103,3 which permits a court in specified proceedings involving the


2

All further statutory references are to the Family Code, unless otherwise

noted.


Section 3102, subdivision (a), provides, in pertinent part: “If either parent

of an unemancipated minor child is deceased, the children, siblings, parents, and
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.” Subdivision (c) states that the section “does not
apply if the child has been adopted by a person other than a stepparent or
grandparent of the child” and that “[a]ny visitation rights granted pursuant to this
section automatically terminate if the child is adopted” by such a person.
3

Section 3103 provides, in pertinent part: “(a) Notwithstanding any other

provision of law, in a proceeding described in Section 3021, the court may grant
reasonable visitation to a grandparent of a minor child of a party to the proceeding
if the court determines that visitation by the grandparent is in the best interest of
the child. [¶] . . . [¶] (d) 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

(Footnote continued on next page.)

9



custody of a child to grant grandparent visitation; and section 3104,4 which

permits grandparents to petition for visitation if the grandchild’s parents are not

married or if certain other conditions are met.5

We first must determine which statute controls in this case. Section 3102

does not apply because neither parent is deceased.



(Footnote continued from previous page.)

if the child’s parents agree that the grandparent should not be granted visitation
rights.”
4

Section 3104 provides, in pertinent part: “(a) On petition to the court by a

grandparent of a minor child, the court may grant reasonable visitation rights to
the grandparent if the court does both of the following: [¶] (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. [¶] (2)
Balances the interest of the child in having visitation with the grandparent against
the right of the parents to exercise their parental authority. [¶] (b) A petition for
visitation under this section may not be filed while the natural or adoptive parents
are married, unless one or more of the following circumstances exist: [¶] (1) The
parents are currently living separately and apart on a permanent or indefinite basis.
[¶] (2) One of the parents has been absent for more than one month without the
other spouse knowing the whereabouts of the absent spouse. [¶] (3) One of the
parents joins in the petition with the grandparents. [¶] (4) The child is not residing
with either parent. [¶] . . . . [¶] (e) There is a rebuttable presumption that the
visitation of a grandparent is not in the best interest of a minor child if the natural
or adoptive parents agree that the grandparents should not be granted visitation
rights. [¶] (f) 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 if the
parent who has been awarded sole legal and physical custody of the child in
another proceeding or with whom the child resides if there is currently no
operative custody order objects to visitation by the grandparent.”
5

In addition, section 3100 provides that in making an order for joint custody

of a minor child, “[i]n the discretion of the court, reasonable visitation rights may
be granted to any other person having an interest in the welfare of the child.” As
noted above, the present case does not involve an order for joint custody.

10



Section 3103 provides that in specified proceedings involving the custody

of a child, including proceedings for dissolution of marriage, “the court may grant

reasonable visitation to a grandparent of a minor child of a party to the proceeding

if the court determines that visitation by the grandparent is in the best interest of

the child.” (§ 3103, subd. (a).) The visitation order in the present case was issued

in a proceeding for dissolution of marriage, but it was issued years after a

judgment had been entered dissolving the marriage and awarding sole custody of

the child to the mother.

Section 3104 permits a grandparent to petition a court for visitation if the

child’s parents are not married or are living separately or if certain other

conditions apply. (§ 3104, subd. (b).) The court may grant reasonable visitation if

the court “[f]inds 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 “[b]alances the interest of the child in having visitation

with the grandparent against the right of the parents to exercise their parental

authority.” (§ 3104, subd. (a).)

Both section 3103 and section 3104 provide a rebuttable presumption that

grandparent visitation is not in the child’s best interest, if the parents agree that the

grandparents should not be granted visitation. (§§ 3103, subd. (d), 3104, subd.

(e).) Neither of these provisions apply in this case, however, because Emily’s

father supports the paternal grandparents’ request for visitation rights.6


6

As noted above, the superior court has since terminated the father’s parental

rights, but this circumstance does not affect our analysis because it occurred after
the superior court issued the order here at issue.

11



Section 3104 further applies the same rebuttable presumption against

visitation “if the parent who has been awarded sole legal and physical custody of

the child in another proceeding . . . objects to visitation by the grandparent.”

(§ 3104, subd. (f).) Section 3103 contains no similar provision addressing the

situation in which a parent has been awarded sole custody of the child.

The grandparents argue that section 3103 is the controlling statute. Section

3103 applies “[n]otwithstanding any other provision of law, in a proceeding

described in Section 3021,” which includes “[a] proceeding for dissolution of

marriage.”7 As noted above, the present action is a proceeding for dissolution of

marriage, but the order for grandparent visitation was made several years after

judgment had been entered dissolving the marriage and granting sole custody of

Emily to the mother. We must determine, therefore, whether the Legislature

intended section 3103 to apply in marriage dissolution proceedings after entry of

judgment dissolving the marriage and awarding custody of the child.

“The fundamental purpose of statutory construction is to ascertain the intent

of the lawmakers so as to effectuate the purpose of the law. [Citations.] In order

to determine this intent, we begin by examining the language of the statute.

[Citations.]” (People v. Pieters (1991) 52 Cal.3d 894, 898.) But we also have


7

Section 3021 provides: “This part applies in any of the following: [¶] (a) A

proceeding for dissolution of marriage. [¶] (b) A proceeding for nullity of
marriage. [¶] (c) A proceeding for legal separation of the parties. [¶] (d) An action
for exclusive custody pursuant to Section 3120. [¶] (e) A proceeding to determine
physical or legal custody or for visitation in a proceeding pursuant to the Domestic
Violence Prevention Act . . . . [¶] . . . [¶] (f) A proceeding to determine physical or
legal custody or visitation in an action pursuant to the Uniform Parentage Act . . . .
[¶] (g) A proceeding to determine physical or legal custody or visitation in an
action brought by the district attorney pursuant to Section 17404.”

12



held that “ ‘[i]t is a fundamental rule of statutory construction that statutes should

be construed to avoid anomalies.’ ” (Equilon Enterprises v. Common Cause, Inc.

(2002) 29 Cal.4th 53, 64.) “Moreover, the various parts of a statutory enactment

must be harmonized by considering the particular clause or section in the context

of the statutory framework as a whole. [Citations.]” (Palos Verdes Faculty Assn.

v. Palos Verdes Peninsula Unified Sch. Dist. (1978) 21 Cal.3d 650, 659.) “Thus,

‘[t]he intent prevails over the letter, and the letter will, if possible, be so read as to

conform to the spirit of the act.’ [Citation.] Finally, we do not construe statutes in

isolation, but rather read every statute ‘with reference to the entire scheme of law

of which it is part so that the whole may be harmonized and retain effectiveness.’

[Citation.]” (People v. Pieters, supra, 52 Cal.3d at p. 899; Brown v. Superior

Court (1984) 37 Cal.3d 477, 485.)

Considering section 3103 in light of section 3104, it appears that in

marriage dissolution proceedings, the Legislature intended section 3103 to govern

grandparent visitation only until entry of a judgment dissolving the marriage and

awarding custody of the child. This construction of section 3103 furthers the

Legislature’s intent for the following reasons.

The apparent purpose of section 3103 is to permit a court to grant

grandparent visitation during the pendency of certain judicial proceedings

involving custody of the child. This permits the court in a marriage dissolution

action, for example, to consider grandparent visitation when fashioning its custody

and visitation orders. But the situation changes once the marriage has been

dissolved and custody of the child and any visitation orders have been determined

by entry of judgment. Although the court retains jurisdiction to modify its custody

and visitation orders upon a showing of changed circumstances at any time while

the child remains a minor (Burchard v. Garay (1986) 42 Cal.3d 531, 535), it

13



would make little sense to permit grandparents to seek a visitation order in a

marriage dissolution proceeding after a judgment dissolving the marriage and

awarding custody of the child has been entered. If we so construed section 3103,

it would permit a grandparent to seek visitation in a marriage dissolution

proceeding at any time until the child becomes an adult. It appears, instead, that

the Legislature intended that once a judgment dissolving the marriage and

awarding custody of the child has been entered, the provisions of section 3104

would govern whether the grandparents should be granted visitation. This

conclusion is supported by the circumstance that section 3104 permits a

grandparent to petition for visitation if the parents are not married. The provisions

of section 3104 thus come into play once a judgment dissolving the marriage and

determining custody of the child has been entered.

Our conclusion also is supported by the circumstance that section 3104, and

not section 3103, contains a provision addressing the situation in which a parent

has been granted sole custody of the child. As noted above, both statutes contain a

rebuttable presumption against grandparent visitation if the parents agree that such

visitation should be denied. But only 3104 also applies a rebuttable presumption

against grandparent visitation if the parent granted sole custody of the child

objects. We conclude that the Legislature did not include a similar provision in

section 3103 because it would not be needed during marriage dissolution

proceedings before a judgment awarding custody had been entered. There would

be no need to include such a provision in section 3103 if, as we conclude, a

request for grandparent visitation is governed by section 3104 once a judgment

has been entered dissolving the marriage and awarding sole custody of the child to

one parent.

14



Our construction prevents the anomalous result of applying a rebuttable

presumption against grandparent visitation if a parent granted sole custody objects

to a petition filed under section 3104, but not if the court grants such visitation in a

marriage dissolution proceeding under section 3103. It is difficult to imagine why

the Legislature would intend the presumption to apply in one circumstance but not

the other.

We conclude, therefore, that the present case is governed by section 3104.

The mother contends that section 3104 is unconstitutional both on its face

and as applied in this case, because it unduly burdens her parental liberty interest

in the custody, care, and control of her child. We first address the mother’s claim

under the federal Constitution.

A sharply divided United States Supreme Court addressed the thorny issue

of grandparent visitation in Troxel v. Granville, supra, 530 U.S. 57, 60,

considering a Washington statute that permitted “ ‘[a]ny person’ ” to petition the

superior court for visitation rights “ ‘at any time’ ” and authorized the court to

grant such visitation if it would “ ‘serve the best interest of the child.’ ” The

paternal grandparents petitioned for visitation with their two granddaughters after

their son committed suicide and the children’s mother notified them she wished to

limit their visitation with her daughters to one short visit a month. The parents

had never married and had separated two years before the father died. Before his

death, the father had lived with the paternal grandparents and had regularly

brought his daughters to his parents’ home for weekend visits.

Justice O’Connor’s plurality opinion in Troxel, in which Chief Justice

Rehnquist, and Justices Ginsburg and Breyer joined, observed that “the Due

Process Clause of the Fourteenth Amendment protects the fundamental right of

parents to make decisions concerning the care, custody, and control of their

15



children.” (Troxel v. Granville, supra, 530 U.S. 57, 66.) The plurality opinion

concluded that the Washington statute, as applied in that case, violated that

fundamental liberty interest. (Id. at p. 67.) The plurality stated: “[T]here is a

presumption that fit parents act in the best interests of their children.” (Id. at p.

68.) “Accordingly, so long as a parent adequately cares for his or her children

(i.e., is fit), there will normally be no reason for the State to inject itself into the

private realm of the family to further question the ability of that parent to make the

best decisions concerning the rearing of that parent’s children. [Citation.]” (Id. at

pp. 68-69 (plur. opn. of O’Connor, J.).)

But the plurality did not prohibit the state from ordering grandparent

visitation, stating instead: “The problem here is not that the Washington Superior

Court intervened, but that when it did so, it gave no special weight at all to

Granville’s determination of her daughters’ best interests.” (Troxel v. Granville,

supra, 530 U.S. 57, 69 (plur. opn. of O’Connor, J.).) To the contrary, “[t]he

judge’s comments suggest that he presumed the grandparents’ request should be

granted unless the children would be ‘impact[ed] adversely.’ In effect, the judge

placed on [the mother], the fit custodial parent, the burden of disproving that

visitation would be in the best interest of her daughters.” (Ibid.)

Noting that “the court’s presumption failed to provide any protection for

[the mother’s] fundamental constitutional right to make decisions concerning the

rearing of her own daughters,” the plurality included a “cf.” cite to section 3104,

subdivision (e), which, as noted above, creates a “rebuttable presumption that

grandparent visitation is not in [the] child’s best interest if [the] parents agree that

visitation rights should not be granted.” (Troxel v. Granville, supra, 530 U.S. 57,

69-70 (plur. opn. of O’Connor, J.).)

16



The plurality in Troxel concluded that the Washington statute failed to give

sufficient weight to the parent’s judgment concerning the wisdom of grandparent

visitation: “[T]he decision whether such an intergenerational relationship would be

beneficial in any specific case is for the parent to make in the first instance. And,

if a fit parent’s decision of the kind at issue here becomes subject to judicial

review, the court must accord at least some special weight to the parent’s own

determination.” (Troxel v. Granville, supra, 530 U.S. 57, 70 (plur. opn. of

O’Connor, J.).) The plurality was careful to note, moreover, “that there is no

allegation that [the mother] ever sought to cut off visitation entirely.” (Id. at p.

71.) The plurality firmly stated that a court may not simply substitute for the

parent’s judgment its own judgment of what is best for the child: “[T]he Due

Process Clause does not permit a State to infringe on the fundamental right of

parents to make child rearing decisions simply because a state judge believes a

‘better’ decision could be made.” (Id. at pp. 72-73.)

Although concluding that the Washington statute was unconstitutional, the

plurality adopted a cautious approach in this sensitive area of law: “Because we

rest our decision on the sweeping breadth of [the Washington statute] and the

application of that broad, unlimited power in this case, we do not consider the

primary constitutional question passed on by the Washington Supreme Court –

whether the Due Process Clause requires all nonparental visitation statutes to

include a showing of harm or potential harm to the child as a condition precedent

to granting visitation. We do not, and need not, define today the precise scope of

the parental due process right in the visitation context. . . . [T]he constitutional

protections in this area are best ‘elaborated with care.’ ” (Troxel v. Granville,

supra, 530 U.S. 57, 73 (plur. opn. of O’Connor, J.).)

17



Justice Souter concurred in the judgment, but would have affirmed the

Washington Supreme Court’s ruling that the statute is unconstitutional on its face,

saying the case does not “call for turning any fresh furrows in the ‘treacherous

field’ of substantive due process. [Citation.]” (Troxel v. Granville, supra, 530

U.S. 57, 76 (conc. opn. of Souter, J.).) “We have long recognized that a parent’s

interests in the nurture, upbringing, companionship, care, and custody of children

are generally protected by the Due Process Clause of the Fourteenth Amendment.

[Citations.]” (Id. at p. 77.) A parent’s right includes “the right to be free of

judicially compelled visitation by ‘any party’ at ‘any time’ a judge believed he

‘could make a “better” decision than the objecting parent had done.’ ” (Id. at

p. 78.)

Justice Thomas concurred that parents have a fundamental right “to direct

the upbringing of their children.” (Troxel v. Granville, supra, 530 U.S. 57, 80

(conc. opn. of Thomas, J.).) He would have applied a strict scrutiny standard of

review, concluding that the state of Washington “lacks even a legitimate

governmental interest – to say nothing of a compelling one – in second-guessing a

fit parent’s decision regarding visitation with third parties.” (Id. at p. 80.)

The decision in Troxel does not support the mother’s argument here that

section 3104 is unconstitutional on its face. Section 3104 is significantly different

from the Washington statute at issue in Troxel. The Washington statute was, in

the words of the plurality in Troxel, “breathtakingly broad,” permitting “ ‘[a]ny

person’ ” to petition the superior court for visitation rights “ ‘at any time.’ ”

(Troxel v. Granville, supra, 530 U.S. 57, 67 (plur. opn. of O’Connor, J.), italics

omitted.) Section 3104 is more narrow, permitting grandparents of a minor child

to petition the court for visitation rights only if the child’s parents are not married

or are separated or if other similar conditions apply. Section 3104 requires that

18



there be “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 directs the court to balance “the interest of the child in having visitation with

the grandparent against the right of the parents to exercise their parental authority”

before ordering grandparent visitation. As the Court of Appeal stated in Lopez v.

Martinez (2000) 85 Cal.App.4th 279, 287-288: “It can hardly be said the

California statute at issue in this case comes even close to being so ‘breathtakingly

broad’ as to be unconstitutional. On the contrary, it explicitly limits the situations

and circumstances in which grandparents can petition for visitation rights. Even

when grandparents are statutorily given standing to petition for visitation rights,

there is always a rebuttable presumption in favor of the parents when the parents

conclude visitation is not in the best interests of the child. (§ 3104, subds. (e), (f).)

The result is a balance between the child’s interest in the grandparental

relationship and the right of the parents to rear their own child as they see fit.”

As the Court of Appeal recognized in Lopez v. Martinez, supra, 85

Cal.App.4th 279, 288, the Legislature limited section 3104 by creating rebuttable

presumptions against grandparent visitation “if the child’s parents agree that the

grandparent should not be granted visitation rights” (§ 3104, subd. (e)), or if the

parent awarded sole custody objects to grandparent visitation (§ 3104, subd. (f)).

These provisions prevent the situation that arose in Troxel in which the court

ordered visitation over the objection of the child’s sole surviving fit parent based

upon a finding that such visitation was in the child’s best interest. Unlike the

Washington statute at issue in Troxel, section 3104 gives “special weight” to the

parents’ decision, if the parents agree that visitation is not in their child’s best

interest, or to the decision of a parent who has been awarded sole custody of the

child. The high court recognized as much by citing with approval section 3104,

19



subdivision (e). (Troxel v. Granville, supra, 530 U.S. 57, 70 (plur. opn. of

O’Connor, J.).)

Accordingly, section 3104 does not suffer from the constitutional

infirmities that plagued the Washington statute considered in Troxel. Section

3104 does not violate the federal Constitution on its face, as Justice Souter

concluded the Washington statute did, because it does not permit “judicially

compelled visitation by ‘any party’ at ‘any time’ a judge believed he ‘could make

a “better” decision’ than the objecting parent had done.” (Troxel v. Granville,

supra, 530 U.S. 57, 78 (conc. opn. of Souter, J.).) Section 3104 permits only

grandparents to seek visitation and only if the parents are not married or are

separated or if other specified circumstances exist. It requires that there be “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

directs the court to balance “the interest of the child in having visitation with the

grandparent against the right of the parents to exercise their parental authority”

and creates rebuttable presumptions against visitation if the parents agree that

grandparent visitation is not in their child’s best interest or a parent with sole

custody of the child objects to grandparent visitation. (Ibid.)

Neither does the decision in Troxel support the mother’s argument here that

section 3104 violates the federal Constitution as applied in this case. Troxel

involved an order for grandparent visitation that was opposed by the child’s sole

surviving fit parent. That was not the situation before the superior court in this

case when it issued the visitation order under review. Rather, the parents of the

child in the present case disagreed concerning grandparent visitation, and the

father had not been declared unfit and his parental rights had not yet been

terminated. Nothing in the decision in Troxel suggests that an order for

20



grandparent visitation that is supported by one parent infringes upon the parental

rights of the other parent.

The mother attempts to equate herself to a sole surviving parent by

describing the father as “uninterested” and asserting, without explanation or

citation of authority, that he is “akin” to a deceased parent. We disagree. The

father in the present case is alive and, as noted above, at the time of the visitation

order at issue here, his parental rights had not been terminated. The mother had

been awarded sole legal and physical custody of Emily, but this did not terminate

the father’s parental rights, nor did it terminate his due process interest in

parenting. (See e.g., Hoversten v. Superior Court (1999) 74 Cal.App.4th 636, 641

[acknowledging the constitutional interest of an incarcerated parent in visitation

with his child].) An order granting a parent sole legal custody “means that one

parent shall have the right and the responsibility to make the decisions relating to

the health, education, and welfare of a child.” (§ 3006) This is different from, and

far less drastic than, an order declaring a minor free from the control of a parent,

which “terminates all parental rights and responsibilities with regard to the child”

(§ 7803) and leaves the child eligible for adoption. (In re Marriage of O’Connell

(1978) 80 Cal.App.3d 849, 854; see County of Ventura v. Gonzales (2001) 88

Cal.App.4th 1120, 1123-1124 [dicta]; In re Marriage of Dunmore (2000) 83

Cal.App.4th 1, 5 [a father’s obligation to support his child does not cease until his

parental rights are terminated].)

Court-ordered grandparent visitation over the objection of a sole surviving

parent implicates that parent’s right to the custody and control of his or her child.

(Troxel, supra, 530 U.S. 57, 66 (plur. opn. of O’Connor, J.); Punsly v. Ho (2001)

87 Cal.App.4th 1099; Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848.) But the

mother in the present case has cited no authority that holds that an order for

21



grandparent visitation that is supported by one of the parents infringes upon the

parental rights of the other parent.

In his concurring and dissenting opinion, Justice Chin concludes that the

father’s support of the grandparents’ request for visitation “is legally irrelevant

and does not affect the constitutional protection to which [the mother], as Emily’s

sole legal custodian, is entitled against state interference with her parenting

decisions.” (Conc. and dis. opn. of Chin, J., post, at p. 9.) But with the exception

of two out-of-state cases (In re Marriage of Howard (Iowa 2003) 661 N.W.2d

183; Rust v. Rust (Tenn. App. 1993) 864 S.W.2d 52, 53), the decisions cited in

support of this proposition discuss the rights of both parents to control the manner

in which they should rear their child, or the rights of a sole surviving parent, and

do not support the conclusion that one parent has a due process right that may be

infringed if a third party is granted visitation with the child with the consent of the

other parent. As the plurality opinion in Troxel cautioned, we should be very

careful in identifying the scope of the due process interest in parenting. (Troxel v.

Granville, supra, 530 U.S. 57, 72-73 (plur. opn. of O’Connor, J.) [“we agree with

Justice Kennedy that the constitutionality of any standard for awarding visitation

turns on the specific manner in which that standard is applied and that the

constitutional protections in this area are best ‘elaborated with care.’ ”].)

In his concurring and dissenting opinion, Justice Baxter concludes that

“[t]he majority errs in reaching out to consider and reject the mother’s as-applied

constitutional challenge to section 3104(f).” (Conc. and dis. opn. of Baxter, J.,

post, at p. 1.) It can hardly be said that we are “reaching out” to decide this issue.

The Court of Appeal held that section 3104 is unconstitutional as applied in this

case. We granted review to resolve that issue, among others.

22



Justice Baxter’s concurring and dissenting opinion cites in support of his

assertion that it is improper for us to decide whether the statute is unconstitutional

as applied the observation in Bowen v. Kendrick (1989) 487 U.S. 589, 600, that

“only a facial challenge could have been considered, as the Act had not been

implemented.” The high court was referring to its earlier decision in Edwards v.

Aguillard (1987) 482 U.S. 578, which involved a facial challenge to Louisiana’s

“Creationism Act.” The opinion in Edwards notes that the state officials in that

case “agreed not to implement the Creationism Act pending the final outcome of

this litigation.” (Id. at p. 581, fn. 1.) The present case, unlike Edwards, involves a

specific application of the challenged statute.

Justice Baxter’s concurring and dissenting opinion also cites our opinion in

Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1085, for the proposition that an

“as applied” challenge may be brought only if there is “a present impermissible

application of the challenged statute or ordinance which the court can remedy.”

(Conc. & dis. opn. of Baxter, J., post, at p. 1.) But Tobe involved an application

for mandamus to bar enforcement of a local ordinance. (Tobe, at p. 1082, fn. 5.)

We held that only a facial challenge to the ordinance had been perfected because

the petitioners sought to bar any enforcement of the ordinance and had not

successfully raised the issue that the ordinance had been enforced in an

unconstitutional manner in a particular case. (Id. at pp. 1092-1093.) Similarly,

Tunstall ex rel. Tunstall v. Bergeson (Wash. 2000) 5 P.3d 691, 703, relied upon by

the concurring and dissenting opinion, held that prison inmates failed to perfect an

“as applied” challenge to a Washington statute because they “fail[ed] to provide

any specific facts demonstrating that the State’s application of [the statute] has

violated article IX [of the Washington Constitution]. Rather, the inmates merely

23



speculate about constitutional problems that could result from [the statute]’s

application.”

Although we conclude that the superior court erred in failing to utilize the

rebuttable presumption in section 3104, subdivision (f), it remains the case that the

superior court did apply the statute and, thus, it is proper for this court to

determine whether section 3104 is constitutional as applied in this case.

In addition to her reliance upon the federal Constitution, the mother also

bases her attack on section 3104 upon the California Constitution; citing our

decisions in Conservatorship of Wendland (2001) 26 Cal.4th 519, American

Academy of Pediatrics v. Lundgren (1997) 16 Cal.4th 307, and Hill v. National

Collegiate Athletic Assn., supra, 7 Cal.4th 1. Each of these cases applies the

explicit guarantee of the right of privacy in the California Constitution (Cal.

Const., art. I, § 1), but none does so in a context similar to the present case.

Conservatorship of Wendland, supra, 26 Cal.4th 519, 531-532, involved the right

to refuse medical treatment (“ ‘The constitutional right of privacy guarantees to

the individual the freedom to choose to reject, or refuse to consent to, intrusions of

his bodily integrity.’ ”). American Academy of Pediatrics v. Lundgren, supra, 16

Cal.4th 307, 332, involved the right of a pregnant minor to obtain an abortion

without parental consent (“[T]he interest in autonomy privacy protected by the

California constitutional privacy clause includes a pregnant woman’s right to

choose whether or not to continue her pregnancy. [Citations.]”). And Hill v.

National Collegiate Athletic Assn., supra, 7 Cal.4th 1, 35, involved compulsory

drug tests for college athletes (“Legally recognized privacy interests are generally

of two classes: (1) interests in precluding the dissemination or misuse of sensitive

and confidential information (‘informational privacy’); and (2) interests in making

intimate personal decisions or conducting personal activities without observation,

24



intrusion, or interference (‘autonomy privacy’).”). None of these cases support the

mother’s argument that an order for grandparent visitation that is supported by one

parent infringes upon the parental rights of the other parent.

We conclude, therefore, that section 3104 does not violate the federal or

California Constitutions, either on its face or as applied.

As noted above, subdivision (f) of section 3104 creates “a rebuttable

presumption affecting the burden of proof that the visitation of a grandparent is

not in the best interest of a minor child if the parent who has been awarded sole

legal and physical custody of the child . . . objects to visitation by the

grandparent.” In the present case, the mother was awarded sole custody of Emily

and objected to grandparent visitation. Accordingly, the grandparents were

required to overcome a rebuttable presumption that visitation is not in Emily’s

best interest. The record before us reflects that the superior court did not consider

this presumption, but rather expressly utilized a “best interest of the child”

standard. Accordingly, we will remand this case to the superior court to

reconsider the visitation order in light of the presumption that grandparent

visitation is not in Emily’s best interest.8

8

Justice Baxter’s concurring and dissenting opinion asserts that

although it is proper for us to decide that the statute is constitutional on its face,
we can and should avoid deciding whether the statute is constitutional as applied
because the matter must be remanded for the superior court to apply the rebuttal
presumption in section 3104, subdivision (f). We do not agree that it is
unnecessary to reach the constitutional issue. If we agreed with the mother that
section 3104 is unconstitutional as applied to a parent such as herself who has
been granted sole custody of the child, there would be no need to remand the
matter.


25



III. DISPOSITION

We affirm the judgment of the Court of Appeal to the extent it reversed the

order for grandparent visitation. The matter is remanded to the Court of Appeal

with directions to remand the matter to the superior court for reconsideration of

the order for grandparent visitation in light of the views expressed in this opinion

and the superior court’s subsequent order terminating the father’s parental rights.

MORENO, J.


WE CONCUR: GEORGE, C. J.
KENNARD,

J.

WERDEGAR,

J.

26












CONCURRING AND DISSENTING OPINION BY BAXTER, J.

I concur in the judgment sustaining Family Code section 3104, subdivision

(f) (section 3104(f)) against a facial challenge under the state and federal

Constitutions; vacating the grandparent visitation order presented here on the

ground the superior court failed to apply section 3104(f); and remanding the

matter to the superior court for it to apply section 3104(f) in the first instance.

However, I respectfully decline to join the majority opinion for two reasons:

1. The majority errs in reaching out to consider and reject the mother’s as-

applied constitutional challenge to section 3104(f). (See maj. opn., ante, at pp. 20-

22.) An “as-applied challenge” is “a claim that a statute is unconstitutional on the

facts of a particular case or to a particular party.” (Black’s Law Dictionary (7th

ed. 1999) p. 223, col. 1.) An essential predicate for an as-applied challenge is that

the statute actually have been applied. (See Bowen v. Kendrick (1988) 487 U.S.

589, 600 [“only a facial challenge could have been considered, as the Act had not

been implemented”]; accord, Tunstall ex rel. Tunstall v. Bergeson (Wash. 2000) 5

P.3d 691, 703 [“Under an ‘as applied’ challenge, the party challenging the statute

contends that the statute, as actually applied, violated the constitution”].) That is,

“there must be a present impermissible application of the challenged statute or

ordinance which the court can remedy.” (Tobe v. City of Santa Ana (1995) 9

Cal.4th 1069, 1085 (Tobe), italics added.) Yet the majority holds (and I agree)

that the superior court did not apply section 3104(f), which shifts the burden to the

1



grandparents to rebut the presumption that visitation is not in the best interest of

the child, and instead mistakenly analyzed the question under a naked “ ‘best

interest of the child’ standard” without according the mother’s decision a

presumption of correctness. (Maj. opn., ante, at p. 25.) Because the superior court

erred in failing to adhere to the statute and a remand is necessary for that court to

apply the statute correctly in the first instance, it is not yet possible to determine

whether a hypothetical future order of visitation—if one should be entered—will

give “special weight” to the mother’s objections. Likewise, it is not yet known

whether the scope and duration of any hypothetical visitation order will raise

constitutional concerns. Indeed, the court on remand might decide not to grant

visitation at all.

Until the statute is actually (and correctly) applied, it is impossible to know

whether an order of visitation will be entered and, if so, its justification and scope.

Obviously, the validity of any hypothetical future order will depend on an

“analysis of the facts of [the] particular case . . . to determine the circumstances in

which the statute or ordinance has been applied and . . . whether in those

particular circumstances the application deprived the individual to whom it was

applied of a protected right.” (Tobe, supra, 9 Cal.4th at p. 1084, italics added.)

Without an actual application of the statute, however, I do not understand how the

as-applied analysis can proceed. (See id. at p. 1111 (conc. opn. of Werdegar, J.).)

Nor does the majority cite any authority for deciding an as-applied challenge to a

statute where the statute has not yet been correctly applied.

But the majority’s error is not merely that it has purported to consider and

reject the mother’s as-applied challenge to a statute even though we already have,

on statutory grounds, vacated the very order that is the subject of her constitutional

challenge. The more serious error is that in so doing, the majority has disregarded

2



the fundamental principle of constitutional adjudication that “ ‘we do not reach

constitutional questions unless absolutely required to do so to dispose of the

matter before us.’ [Citations.] As the United States Supreme Court reiterated, ‘A

fundamental and longstanding principle of judicial restraint requires that courts

avoid reaching constitutional questions in advance of the necessity of deciding

them.’ [Citation.] Applying that principle, the high court observed that if

statutory relief had been adequate in the case before it, ‘a constitutional decision

would have been unnecessary and therefore inappropriate.’ ” (Santa Clara County

Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 230-231; see

also Thompson v. Department of Corrections (2001) 25 Cal.4th 117, 128-129;

accord, Three Affiliated Tribes v. Wold Engineering (1984) 467 U.S. 138, 157-

158.) In this case, our finding of statutory error renders it unnecessary (and

therefore inappropriate) to address the mother’s claim that the statute is

unconstitutional as applied. Especially in this area—where the high court has

cautioned that the constitutional protections “are best ‘elaborated with care’ ”

(Troxel v. Granville (2000) 530 U.S. 57, 73 (Troxel) (plur. opn. of O’Connor, J.),

quoting id. at p. 101 (dis. opn. of Kennedy, J.))—I cannot fathom a justification

for preemptive action. Tellingly, the majority offers none, other than to say that

“[i]f we agreed with the mother that section 3104 is unconstitutional as applied to

a parent such as herself who has been granted sole custody of the child, there

would be no need to remand the matter.” (Maj. opn., ante, at p. 25, fn. 8.) But if

the court on remand declines to order visitation, there will be no need to consider

the constitutional question at all. Judicial restraint is a policy of avoiding the

unnecessary resolution of constitutional questions, not a policy of avoiding

remands.

3



Until today, judicial restraint had led us to construe statutes, if possible, so

as to avoid constitutional questions. (E.g., Miller v. Municipal Court (1943) 22

Cal.2d 818, 828; accord, New York v. Ferber (1982) 458 U.S. 747, 769, fn. 24.)

The contrapositive policy adopted by the majority—i.e., that it is better to construe

the Constitution than await the construction of a statute—mischievously

undermines judicial restraint. I dissent strongly from this new policy.

2. The majority’s categorical declaration that the mother has no federal or

state constitutional interest at stake in this proceeding is bereft of legal authority

and is far broader than is needed to decide this case. The majority rejects the

mother’s as-applied challenge under the federal Constitution and the entirety of

her state constitutional claim at the threshold: In the majority’s view, a court order

granting third parties visitation with the child over the objection of the custodial

parent implicates no constitutional right of the custodial parent, as long as the

order is endorsed by the noncustodial parent. (Maj. opn., ante, at pp. 21-22.)

I do not know whether the majority is correct, although I observe that the

majority fails to support its holding with citation to any legal authority or scholarly

commentary and that neither party, nor their amici curiae, have contended that the

mother has no constitutional rights here.1 Moreover, under the majority’s

approach, a custodial parent would have no constitutional protection whatsoever if

a state overrode that parent’s objections and forced his or her child to go on visits

with any third party—even with complete strangers, and even if such visitation


1

Indeed, as stated in their brief, the grandparents “do not dispute that the

Mother has a legally protected privacy right in regards to the parenting of her
child[,] which would include control over relinquishment of her child to a third
party for visitation.”

4



was demonstrably harmful to the child—as long as the noncustodial parent

acquiesced in the court order.

What is so disappointing is that this startling and novel conclusion is

wholly unnecessary. As the majority elsewhere acknowledges, section 3104(f) is

“[u]nlike the Washington statute at issue in Troxel” in that it “gives ‘special

weight’ to . . . the decision of a parent who has been awarded sole custody of the

child” and therefore “does not suffer from the constitutional infirmities that

plagued the Washington statute considered in Troxel.” (Maj. opn., ante, at pp. 19-

20.) In particular, the majority has determined that the protections in section

3104(f) “prevent the situation that arose in Troxel in which the court ordered

visitation over the objection of the child’s sole surviving fit parent” based on

nothing more than the court’s own assessment of the child’s best interest. (Maj.

opn., ante, at p. 19.) In sum, the majority has determined that section 3104(f)

adequately protects even the rights of a child’s sole surviving parent from

unwarranted intrusion by court-ordered grandparent visitation. It therefore

follows that the statute adequately protects a sole custodial parent (like the mother

here), whose rights are certainly no greater than those of the sole surviving fit

parent in Troxel.

For similar reasons, I believe the majority is also premature in holding that

court-ordered grandparent visitation that is supported by a noncustodial parent

implicates no right of privacy of the custodial parent under the California

Constitution. Instead, I would reject the mother’s facial challenge under well-

settled law. Under our precedents, a statute may be invalidated on its face as

violative of the state constitutional right to privacy only if the invasion of privacy

is “sufficiently serious in [its] nature, scope, and actual or potential impact [as] to

constitute an egregious breach of the social norms underlying the privacy right”

5



(Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 37, italics added) in

at least “the vast majority of its applications.” (American Academy of Pediatrics

v. Lungren (1997) 16 Cal.4th 307, 343 (plur. opn. of George, C.J.).)2 But section

3104, which requires the trial court to consider the right of a parent to exercise his

or her authority in each instance before ordering grandparent visitation, applies

also where the grandparents have been acting as de facto parents or where the

grandparents seek to preserve an existing bond only through brief and infrequent

visitation—and the mother has not shown that the statute would necessarily be

unconstitutional in either instance. (Cf. In re G.P.C. (Mo.Ct.App. 2000) 28

S.W.3d 357, 365 [a two-hour supervised visit every three months “creates a

minuscule intrusion into Parents’ lives”].) Accordingly, I would hold that the

mother has not shouldered her burden to prove that section 3104(f) is

unconstitutional on its face and would reserve judgment on her as-applied

challenge until the statute is actually applied to her. Furthermore, I would leave

for another day the broader issue of whether a sole custodial parent has any state

constitutional protection at all against court-ordered visitation by third parties.

Because the majority has needlessly opined on these major constitutional

issues without the aid of any legal authority and in defiance of fundamental canons


2

As we noted in Kasler v. Lockyer (2000) 23 Cal.4th 472, 502, “[t]he

standard governing a facial challenge to the constitutional validity of a statute has
been the subject of controversy within this court.” (Compare American Academy
of Pediatrics v. Lungren
, supra, 16 Cal.4th at p. 343 with id. at p. 412 (dis. opn. of
Baxter, J.) and id. at p. 421 (dis. opn. of Brown, J.).) Here, as in Kasler, we need
not resolve the controversy because the mother has not made the requisite showing
even under the standard most favorable to her position. (Kasler, supra, 23 Cal.4th
at p. 502.)

6



of constitutional adjudication, I respectfully dissent from that portion of the

majority opinion.

BAXTER, J.

7








CONCURRING AND DISSENTING OPINION BY CHIN, J.




I concur in the majority’s conclusion that under the circumstances of this

case, Family Code section 31041 governs the request of respondents Leanne

Harris and Charles Harris, Jr. (Grandparents) for visitation with their

granddaughter Emily.

However, I disagree with the majority’s unprecedented and troubling

conclusion that if a noncustodial parent supports a grandparent’s visitation request,

a visitation order like the one at issue here—which required a six-year-old child to

fly unaccompanied to another state and effectively transferred her custody to a non

parent in another state for extended time periods—does not even implicate a

custodial parent’s constitutional right. This conclusion finds no support in the

decisions of the high court and is contrary to case law both in California and

elsewhere. In my view, the relevant authority establishes that court-ordered

visitation by a grandparent against the wishes of a fit custodial parent infringes on

that parent’s fundamental right to direct his or her child’s upbringing, and that this

state infringement on a parent’s fundamental right is unconstitutional absent clear

and convincing evidence to rebut the presumption under section 3104, subdivision

(f), that such visitation is not in the child’s best interests. I dissent to the extent the

majority holds otherwise.


1

Except as otherwise indicated, all further statutory references are to the

Family Code.

1



FACTUAL BACKGROUND

Appellant Karen Butler (Karen) married respondent Charles Erik Harris

(Charles) in January 1994. They separated in October 1994, only 10 days before

the birth of their daughter, Emily. Karen formally filed for dissolution of marriage

in January 1995, asserting that Charles had been psychologically and physically

abusive to her. Charles admitted hitting Karen twice after an argument and biting

her on another occasion. In July 1995, pursuant to stipulation, the trial court-

ordered entry of a judgment of dissolution. The court’s order awarded Karen

“sole legal custody” and “sole physical” custody of Emily. By statute, the court’s

award of sole legal custody to Karen bestowed on her the exclusive “right and . . .

responsibility to make the decisions relating to the health, education, and welfare

of” Emily. (§ 3006.) Similarly, by statute, the court’s award to Karen of sole

physical custody placed Emily “under” Karen’s exclusive “supervision,” “subject

to the power of the court to order visitation.” (§ 3007.) Regarding visitation, the

court granted Charles supervised visits if he complied with certain conditions.

Finally, the court’s order specified that that there would be no change in these

arrangements absent “a showing of substantial change in circumstances.”

In August 1995, Grandparents were joined “as parties to” the dissolution

action pursuant to stipulation. The court’s order joining Grandparents provided

that they were bound by the terms of the stipulated judgment between Karen and

Charles, including the award to Karen of sole legal and physical custody.

During the ensuing years, there were numerous proceedings and court

orders involving the question of visitation by Grandparents. In May 1999, the

court granted Grandparents week-long visits four times per year until Emily

started school, and specified that Grandparents were not to permit Charles to have

contact with Emily during those visits. In February 2000, Charles informed Karen

2



that he was living with Grandparents. Nevertheless, Grandparents assured Karen

that Charles would have no contact with Emily during her next visit.

Because the court’s order of May 1999 governed only until Emily started

school, Grandparents filed an order to show cause in May 2000 requesting the

following visitation after Emily began kindergarten in August 2000: two weeks in

August, one week during the Christmas/New Year’s period, one week during

Easter, and one week in June. To accomplish these visits, they asked the court to

order Karen to put six-year-old Emily on a plane by herself and send her from her

home in Salt Lake City to San Diego, where Grandparents lived. They also asked

the court for permission to take Emily to visit relatives in Northern California and

Missouri upon giving Karen notice and information regarding itinerary and

contact numbers. Finally, they asked the court to grant Charles supervised

visitation with Emily during her visits with Grandparents.

Karen opposed Grandparents’ request. She objected generally that,

although she was willing to work out visitation with Grandparents, she did not

think visitation should be court ordered. More specifically, she expressed concern

that court-ordered visitation would cause Emily to feel that her mother had “no

control over what happens to her.” Karen also expressed concern that the visits to

California uprooted Emily from her new family in Utah and hindered Karen’s

efforts to integrate Emily into the new family. In her opposition declaration,

Karen stated her concern that the extensive court-ordered visitation Grandparents

were requesting would “destroy the feeling of belonging that every child needs in

order to feel safe and secure with her family in her home.” Finally, Karen

objected to having a court order her to “put[] her . . . six year-old daughter on a

plane by herself to go to” visit Grandparents in California.

3



The trial court granted Grandparents’ visitation request. It did not

“question[]” Karen’s “motivation” or the sincerity of her belief that “it is best for

this child if [Karen] provides the family unit and she makes the decisions as to

what contact, if any, would exist between other people and this child.” However,

the court was of the “firm belief” that Emily would “be better off with some

meaningful relationship with . . . extended family,” and it saw no “realistic

possibility” that Karen “would do anything to encourage the relationship” between

Emily and Grandparents “in spite of what she [said].” Thus, after finding that it

was in Emily’s “best interest . . . to continue to have a significant relationship with

the Grandparents,” the court ordered the following: (1) each year, Emily would

have to visit Grandparents in San Diego for 12 days in August, from December 26

to 31, and for 12 days in June; (2) starting in December 2000, when Emily was

only six years old, Karen would have to put Emily on a plane in Salt Lake City to

fly to California by herself; and (3) during Emily’s visits, Grandparents could take

her to see relatives in California or any other state, and had to inform Karen of

Emily’s whereabouts only if they took her “out of [San Diego] County overnight.”

The Court of Appeal reversed, finding that the visitation order violated both

the California and United States Constitutions. The court explained that the

governing statute was section 3104, subdivision (f), which provides: “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 if the parent who has been

awarded sole legal and physical custody of the child in another proceeding . . .

objects to visitation by the grandparent.” The court next held that although the

statute, as written, does not violate the federal Constitution, it violates a parent’s

“fundamental liberty interest” under the state Constitution unless “read” to require

enforcement of the custodial parent’s decision absent “clear and convincing

4



evidence that the child will suffer harm or potential harm if visitation is not

ordered.” The court then held that the application of the statute here violated

Karen’s state and federal constitutional rights because the trial court “did nothing

more than apply a bare-bones best interest test and did not accord” Karen’s

decision “any deference or material weight.”

DISCUSSION







A. Custodial Parents Have A Fundamental Constitutional Right To

Make Decisions Regarding Their Children.



“ ‘Personal liberty is a fundamental interest, second only to life itself, as an

interest protected under both the California and United States

Constitutions.’ [Citation.] ” (In re Roger S. (1977) 19 Cal.3d 921, 927.)

“[I]nclude[d]” in this “constitutionally protected ‘liberty’ ” interest is “the right”

of a parent “ to ‘bring up children’ [citation] and to ‘direct [their] upbringing and

education.’ ” (Id. at p. 928.) Indeed, we have held that “the interest of a parent in

the companionship, care, custody, and management of his [or her] children is a

compelling one, ranked among the most basic of civil rights. [Citations.]” (In re

B.G. (1974) 11 Cal.3d 679, 688.) Similarly, a plurality of the United States

Supreme Court recently stated that a parent’s “liberty interest . . . in the care,

custody, and control of [his or her] children . . . is perhaps the oldest of the

fundamental liberty interests recognized by” the high court. (Troxel v. Granville

(2000) 530 U.S. 57, 65 (plur. opn. of O’Connor, J.) (Troxel).) In short, over the

years, “constitutional interpretation” by both this court and the high court “has

consistently recognized that the parents’ claim to authority in their own household

to direct the rearing of their children is basic in the structure of our society. ‘It is

cardinal . . . that the custody, care and nurture of the child reside first in the

parents, whose primary function and freedom include preparation for obligations

the state can neither supply nor hinder.’ ” (Ginsberg v. New York (1968) 390 U.S.

5



629, 639.) “[T]he state has no general authority to dictate to parents the manner in

which they should rear their children.” (In re Marriage of Wellman (1980) 104

Cal.App.3d 992, 996 (Wellman).)

“ ‘Encompassed within [this] well-established fundamental right of parents

to raise their children is the right to determine with whom their children should

associate. [Citation.]’ [Citation.]” (Punsly v. Ho (2001) 87 Cal.App.4th 1099,

1107.) Indeed, “[d]eciding when, under what conditions, and with whom their

children may associate is among the most important rights and responsibilities of

parents.” (Hoff v. Berg (N.D. 1999) 595 N.W.2d 285, 291 (Hoff).) Thus, this

“decisionmaking function lies at the core of parents’ liberty interest in the care,

custody, and control of their children.” (Lulay v. Lulay (Ill. 2000) 739 N.E.2d

521, 531 (Lulay); see also Troxel, supra, 530 U.S. at p. 80 (conc. opn. of Thomas,

J.) [“parents have a fundamental constitutional right to rear their children,

including the right to determine who shall educate and socialize them”].)

B. Court-Ordered Visitation Infringes On The Constitutional Right Of

Custodial Parents To Direct Their Children’s Upbringing.

In several ways, court orders granting visitation rights to third parties,

including grandparents, infringe on the constitutional right of custodial parents to

direct their children’s upbringing. As noted above, both the federal and state

Constitutions establish the right of custodial parents to decide with whom their

children will associate. Obviously, court-ordered visitation over a custodial

parent’s objection infringes on that right. Moreover, California courts have long

held that visitation is really just “a limited form of custody during the time the

visitation rights are being exercised.” (Perry v. Superior Court (1980) 108

Cal.App.3d 480, 483; see also In re Marriage of Gayden (1991) 229 Cal.App.3d

1510, 1517 (Gayden); Guardianship of Martha M. (1988) 204 Cal.App.3d 909,

912; Wellman, supra, 104 Cal.App.3d at p. 996.) Thus, a court order granting

6



visitation rights to a third party is in essence an order transferring custody of the

child from the custodial parent to the third party. In this sense, court-ordered

visitation clearly constitutes a significant infringement of a custodial parent’s

constitutional right to the companionship, care, custody, and management of his or

his children. (See Lulay, supra, 739 N.E.2d at p. 532 [“by allowing the state . . . to

force parents to deliver their children to individuals whom the parents have

decided the children should not see,” statute permitting grandparents to obtain

court-ordered visitation “significantly interferes with a fundamental constitutional

right”].)

The visitation ordered in this case well illustrates the extent to which court-

ordered visitation infringes on a custodial parent’s constitutional right. As noted

above, the trial court here ordered that three times a year, starting when Emily was

only six years old, Karen would have to put Emily on a plane in Salt Lake City to

fly to California by herself, thus transferring Emily’s care and custody to

Grandparents for extended periods of time. The visitation periods the court

specified meant that Emily would be separated from the rest of her family in Utah

during the Christmas/New Year’s holiday period and parts of the summer vacation

period. Moreover, the court ruled that during these periods of transferred custody,

Grandparents could take Emily anywhere else in the United States to see other

relatives, with the only limitation being that if they took Emily “out of [San

Diego] County overnight,” they had to inform Karen of Emily’s whereabouts.

Clearly, the court’s visitation order significantly infringed on Karen’s

constitutional right to direct Emily’s upbringing.

Court-ordered visitation also infringes on a custodial parent’s constitutional

right in another, more general sense. As a majority of the high court recently

recognized, where, as here, third parties ask a court to override a custodial parent’s

decision and to order visitation, “the burden of litigating” the visitation request

“can itself be ‘so disruptive of the parent-child relationship that the constitutional

7



right of a custodial parent to make certain basic determinations for the child’s

welfare becomes implicated.’ [Citation.]” (Troxel, supra, 530 U.S. at p. 75 (plur.

opn. of O’Connor, J.), quoting id. at p. 101 (dis. opn. of Kennedy, J.).) In

response to a visitation request, custodial parents “must presumably hire attorneys,

and then present evidence and defend their decision regarding the visitation before

a trial court. The parents’ authority over their children is necessarily diminished

by this procedure.” (Lulay, supra, 739 N.E.2d at pp. 531-532.) Court-ordered

visitation also undermines the child’s “ ‘trust that the adults who are responsible

for him are the arbiters of his care and control . . . .” (Gayden, supra, 229

Cal.App.3d at p. 1517.) Thus, “judicially compelled visitation against the wishes

of” a custodial parent “can significantly affect parental authority and the strength

of the family unit.” (Ibid.) “This can only be characterized as a significant

interference with parents’ fundamental right to make decisions regarding the

upbringing of their children.” (Lulay, supra, 739 N.E.2d at p. 532.)



C. Court-Ordered Visitation By A Third Party Infringes On A
Custodial Parent’s Constitutional Rights Regardless Of The
Noncustodial Parent’s Support For Visitation.






In its analysis, the majority stresses the fact that Emily’s father, Charles,

“supported” Grandparents’ visitation request. (Maj. opn., ante, at pp. 20-22, 25.)

According to the majority, when a state, at the request of a third party, steps in and

overrides the decision of a fit parent with sole legal and physical custody

regarding visitation by that third party, the state’s act of interference does not even

“infringe[]” on the custodial parent’s constitutional rights if the noncustodial

parent supports the visitation request. (Ibid.)

For several reasons, I disagree with the majority’s view that a noncustodial

parent’s support for a third party’s visitation request completely negates the

custodial parent’s constitutional right to make parenting decisions without state

8



interference. First, the majority fails to explain why, as either a factual or legal

matter, such support has any effect on this constitutional right. As noted above, in

July 1995, Charles stipulated that Karen would have “sole legal custody” and

“sole physical” custody of Emily. Thus, Charles agreed that Karen would have

the exclusive “right and . . . responsibility to make the decisions relating to”

Emily’s “health, education, and welfare” (§ 3006) and that Emily would be

“under” Karen’s exclusive “supervision.” (§ 3007.) By doing so, Charles waived

his right to have any legal say in most of the decisions regarding Emily’s

upbringing, including the decision as to whether she may associate with particular

individuals. Given Charles’s stipulation and its legal effect under California law,

Charles’s support for Grandparents’ visitation request is legally irrelevant and

does not affect the constitutional protection to which Karen, as Emily’s sole legal

custodian, is entitled against state interference with her parenting decisions. The

majority neither explains its contrary view nor cites any supporting authority.2

Second, the majority’s view is inconsistent with precedent, both in

California and elsewhere. The decision most directly on point is perhaps In re

Marriage of Howard (Iowa 2003) 661 N.W.2d 183 (Howard). There, after a

child’s parents divorced, the paternal grandparents filed a petition to enforce their

right under Iowa statutes to visit their grandchild. (Id. at p. 186.) Their petition

was opposed by the child’s mother, but was supported by their son, the child’s

father, who had joint legal custody of the child. (Id. at pp. 185-186.) The trial


2

Ironically, according to the majority, although Charles himself has no right

to visit Emily, his support for Grandparents’ visitation request completely negates
Karen’s constitutional rights and strips her of any constitutional protection against
state interference with her parenting decisions as Emily’s sole custodian.
Moreover, the trial court’s refusal to grant Charles even supervised visitation
undermines the majority’s factually unsupported assertion that he is a “fit” parent.
(Maj. opn., ante, at p. 20.)

9



court granted the petition and ordered visitation. (Id. at pp. 186-187.) The Iowa

Supreme Court reversed, finding that the statute on which the order was based

unconstitutionally “interfere[d] with” the mother’s “fundamental interest” under

the Iowa Constitution in directing her child’s upbringing. (Id. at p. 189.) In

reaching its conclusion, the court expressly rejected the view the majority here

adopts without analysis, i.e., if one parent supports a third party’s visitation

request, then court-ordered visitation does not infringe on the other parent’s

constitutional rights. More specifically, the court rejected the argument that “a

lesser degree of scrutiny” is required in cases involving “a divorced family with

two parental decisionmakers who have different opinions on the scope of their

daughter’s visitation with her grandparents.” (Id. at p. 188.) This fact, the court

explained, does “not alone diminish the fundamental interest of parents who make

caretaking decisions” or “permit[] the state to make choices for an objecting parent

(or parents) . . . .” (Ibid.) Thus, the court held, despite the father’s support for the

grandparent’s visitation request, the statute authorizing the visitation order

“interfere[d] with” the mother’s “fundamental interest” and was constitutionally

permissible only if it was narrowly tailored to serve “a compelling interest.” (Id.

at p. 189.)

The Iowa Supreme Court’s analysis in Howard echoes the analysis our own

Courts of Appeal have adopted in determining whether and when the state may

intervene to resolve disputes between divorced parents. In In re Marriage of

Mentry (1983) 142 Cal.App.3d 260 (Mentry), a trial court issued an order

restraining a divorced father from involving his children in any religious activity

during his visits with them. (Id. at pp. 261-262.) The Court of Appeal reversed,

holding in part that the order was “an unwarranted intrusion into family privacy.”

(Id. at p. 262.) The court first noted that case law in California “reflect[s] a

salutary judicial disinclination to interfere with family privacy without the

evidentiary establishment of compelling need. [Citation.]” (Id. at p. 266.) It then

10



explained: “The rationale that supports judicial respect for family privacy does

not lose its force upon the dissolution of marriage . . . . The concept of family

privacy embodies not simply a policy of minimum state intervention but also a

presumption of parental autonomy. Many of the purposes served by this

presumption become more important after dissolution than they were before. One

such purpose, for example, is to diminish the uncertainties and discontinuities that

can afflict the parent-child relationship whenever third parties (lawyers as well as

judges) episodically intrude through an ill-equipped adversarial process in which

decisions are subject to reconsideration and eventual appellate review. Such

uncertainties and discontinuities are of course more likely . . . after separation or

dissolution than before. . . . For these reasons, among others, considerations of

family privacy and parental autonomy should continue to constrain the exercise of

judicial authority despite the fact that the family is no longer intact; indeed, such

considerations more often than not gain force because the family is no longer

intact.” (Id. at pp. 267-268, fns. omitted.) Thus, the court held, where the

propriety of a given decision rests on “debatable value judgments,” the state may

not “intervene” to resolve parental disputes absent “a clear affirmative showing of

harm or likely harm to the child.” (Id. at p. 269.)

Decisions from other states are in accord with the analysis in Howard and

Mentry, including some that specifically involve statutes granting visitation rights

to grandparents. For example, in Beagle v. Beagle (Fla. 1996) 678 So.2d 1271,

1273, the Florida Supreme Court considered the constitutionality of a Florida

statute permitting a court to order visitation by grandparents where the child is

living with both parents and “either or both” of them objects. The court held that

even where only “one parent” objects to visitation by the grandparents, a judicial

visitation order constitutes “[s]tate interference with the fundamental right” of the

objecting parent under the Florida Constitution “to raise [his or her] children,” and

11



that this act of state interference is constitutionally impermissible absent a

“compelling state interest.”3 (Beagle, at p. 1276.)

In

Rust v. Rust (Tenn. Ct. App. 1993) 864 S.W.2d 52, 53, a Tennessee

appellate court considered the constitutionality of a trial court order, issued at the

request of a divorced father, prohibiting a divorced mother with sole custody of

the couple’s children from home schooling the children and requiring her to enroll

them in public or private school. In reversing, the appellate court held that the

order impermissibly interfered with the mother’s “fundamental liberty interest”

under the state Constitution “to raise [her] own children as [she] see[s] fit.” (Id. at

p. 55.) The court reasoned that a final custody order “creates new legal

relationships between the parents themselves and between each parent and the

child or children. It also creates a new family unit now commonly referred to as a

‘single parent family,’ ” which “is entitled to a similar measure of constitutional

protection against unwarranted governmental intrusion as is accorded to an intact,

two-parent family. [Citations.] Unless the court modifies its custody order, a

custodial parent should be permitted to make the significant, life-influencing

decisions affecting his or her child as long as the parent remains fit to have


3

The court limited its decision to situations “in which a child is living with

both natural parents.” (Beagle. v. Beagle, supra, 678 So.2d at p. 1272.) However,
the court later disavowed this limitation and extended its analysis to situations
where the child’s parents never married and never lived together. (Saul v. Brunetti
(Fla. 2000) 753 So.2d 26, 28-29.) It also later applied this analysis to hold that an
order transferring custody to grandparents based merely on a child’s best interests
violates the constitutional rights of a divorced custodial parent, even if the
noncustodial parent supports the grandparents’ request. (Richardson v.
Richardson
(Fla. 2000) 766 So.2d 1036, 1038.) More recently, the court noted
that it “has consistently held all statutes that have attempted to compel visitation or
custody with a grandparent based solely on the best interest of the child standard,
without the required showing of harm to the child, to be unconstitutional.”
(Sullivan v. Sapp. (Fla. 2004) 866 So.2d 28, 37.)

12



custody.” (Id. at pp. 56.) Thus, the court held, judicial orders that interfere with

the decisions of custodial parents infringe on the constitutional rights of those

parents notwithstanding the wishes of the noncustodial parent. (Ibid.)

As these decisions demonstrate, courts in California and elsewhere agree

that when the state steps in and interferes with a parent’s decision regarding his or

her child, the parent’s constitutional rights have been infringed on whether or not

the other parent supports the state’s decision. They support the conclusion that the

trial court’s visitation order here infringed on Karen’s constitutional rights

notwithstanding Charles’s support for Grandparents’ request. The majority’s

contrary conclusion is inconsistent with these decisions.

The only justification the majority gives for its conclusion is that nothing in

Troxel or the California decisions Karen cites suggests that a visitation order

supported by one parent infringes on the parental rights of the other parent. (Maj.

opn., ante, at pp. 20-22, 25.) However, nothing in any of those decisions supports

the majority’s view, and the majority does not contend otherwise. Nor does

anything in those decisions support the majority’s view that for purposes of third

party visitation, there is a constitutionally significant difference between a “sole

surviving parent” and a divorced parent with sole legal custody of his or her child.

(Maj. opn., ante, at pp. 20-22.) Again, the majority does not contend otherwise.

Finally, the majority offers no persuasive reason for ignoring the constitutional

privacy decisions of this court that Karen cites; without analysis, the majority

summarily disregards those decisions merely because they involved a different

factual “context.” (Maj. opn., ante, at p. 24.) In short, the majority unjustifiably

ignores relevant decisions that support Karen’s position while citing absolutely no

positive support for its conclusion that Charles’s endorsement of Grandparents’

visitation request completely negates Karen’s constitutional right to make

parenting decisions without state interference.

13



I disagree with the majority’s view for one additional and important reason:

its implications and consequences. It is a fundamental precept that constitutional

due process protections do not apply if no state action implicates or infringes upon

a constitutionally protected right or interest. (See, e.g., Board of Regents v. Roth

(1972) 408 U.S. 564, 569 [constitutional due process protections “apply only to

the deprivation of interests encompassed by the Fourteenth Amendment’s

protection of liberty and property”].) In light of this precept, if, as the majority

holds, court-ordered visitation under the circumstances here does not even

“infringe[] upon” a custodial parent’s constitutional rights (maj. opn., ante, at pp.

20-22, 25), then so long as a third party’s visitation request is supported by a

noncustodial parent, there is no constitutional constraint on the state’s power to

step in and override the custodial parent’s decision. Thus, under the majority’s

holding, the state may, if it wants, authorize a court considering such a supported

request to issue a visitation order ex parte and without providing the custodial

parent either notice or a hearing. The state may also set any (or no) standard for

granting such a request or impose the burden of proof on a custodial parent to

show why it should be denied. Because I find the majority’s conclusion as

troubling as it is unprecedented, I reject it.4 (Cf. Santosky v. Kramer (1982) 455


4

I note that the majority’s conclusion in this regard renders its earlier

discussion of Troxel completely unnecessary. The plurality in Troxel concluded
that the visitation order there at issue “infringe[d] on” the parent’s “fundamental
parental right” and that the infringement violated the federal “Due Process Clause”
because the court issuing the order “accorded no deference,” “presumption of
validity,” or “weight” to the parent’s decision. (Troxel, supra, 530 U.S. at p. 67
(plur. opn. of O’Connor, J.).) In other words, the federal due process clause was
applicable—and required that some deference be given the parent’s decision—
only because the order in Troxel infringed on the parent’s constitutional right.
Under the majority’s conclusion that the order here does not infringe on Karen’s
constitutional rights, both the federal due process clause and Troxel are irrelevant

(Footnote continued on next page.)

14



U.S. 745, 754, fn. 7 [“that important liberty interests of the child and its foster

parents may also be affected by a permanent neglect proceeding does not justify

denying the natural parents constitutionally adequate procedures”] (Santosky).)

D. The Visitation Order Here Is Unconstitutional Absent Clear and

Convincing Evidence To Overcome The Presumption That
Visitation Is Not In The Child’s Best Interests.





Not every state act that infringes on a fundamental constitutional right is

unconstitutional. (See Carey v. Population Services International (1977) 431 U.S.

678, 686 [regulation that burdens constitutional right of privacy “may be validated

by a sufficiently compelling state interest”]; Citizens for Parental Rights v. San

Mateo County Bd. Of Education (1975) 51 Cal.App.3d 1, 12 [“not all

infringements of religious beliefs are constitutionally impermissible”].) “If the

state is seeking to serve a compelling interest, an interference with a constitutional

right is permissible if it is narrowly tailored.’ [Citation.]” (People v. Adams

(1993) 19 Cal.App.4th 412, 441.)

In constitutional terms, the interest the state seeks to serve through section

3104 is certainly compelling. “Numerous California decisions recognize that the

state has a special and particularly compelling interest in protecting the health and

welfare of children. [Citations.]” (American Academy of Pediatrics v. Lungren

(1997) 16 Cal.4th 307, 342 (plur. opn. of George, C.J.); see also In re Marilyn H.

(1993) 5 Cal.4th 295, 307 [“the welfare of a child is a compelling state interest

that a state has not only a right, but a duty, to protect”].) Similarly, the United

States Supreme Court has recognized that the state’s “interest in the welfare of the



(Footnote continued from previous page.)

and there is no constitutional limitation on the state’s ability to step in and
override Karen’s decision regarding third party visitation.

15



child” is “urgent.” (Lassiter v. Department of Social Services (1981) 452 U.S. 18,

27.) Thus, the critical question here is whether section 3104 is narrowly tailored

to serve the state’s compelling interest in the welfare of children.

In answering this question, it is necessary first to consider how section

3104 operates. The statute permits a court, on petition of a grandparent, to grant

“reasonable visitation rights to the grandparent.” (§ 3104, subd. (a).) It places

two general limitations on a court’s power to grant such rights. First, a court must

“[b]alance the interest of the child in having visitation with the grandparent

against the right of the parents to exercise their parental authority.” (§ 3104, subd.

(a)(2).) Second, a court may not award visitation rights unless it “[f]inds 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.” (§ 3104,

subd. (a)(1).) On the facts of this case, the statute places one additional limitation

on a court’s power to grant visitation; because Karen has sole legal and physical

custody and “objects to visitation,” the court must apply “a rebuttable presumption

affecting the burden of proof that the visitation . . . is not in the best interest of

[the] child . . . .” (§ 3104, subd. (f).)

The majority holds that the rebuttable presumption in section 3104,

subdivision (f), preserves the statute’s constitutionality as it applies in this case. In

this regard, the majority summarily asserts that this presumption “prevent[s] the

situation that arose in Troxel in which the court-ordered visitation over the

objection of the child’s sole surviving fit parent based upon a finding that such

visitation was in the child’s best interest.” (Maj. opn., ante, at p. 19.)

Given the legal effect of the presumption under California law, the

majority’s assertion is incorrect unless we require petitioning grandparents to rebut

the presumption with clear and convincing evidence. Under our Evidence Code,

“[t]he effect of a presumption affecting the burden of proof is to impose upon the

party against whom it operates the burden of proof as to the nonexistence of the

16



presumed fact.” (Evid. Code, § 606.) Thus, in this case, the rebuttable

presumption under section 3104, subdivision (f), does nothing more than put the

burden on Grandparents, as the parties against whom the presumption operates, to

prove that denying visitation is not in Emily’s best interest.

In light of Evidence Code section 606, the rebuttable presumption under

Family Code section 3104, subdivision (f), though sounding formidable, really

does very little if it may be rebutted by a simple preponderance of the evidence.

The structure of section 3104—which permits a visitation award only on a

grandparent’s petition and a court’s finding that visitation is in the child’s best

interest—already suggests that the burden of proof regarding the child’s best

interests should be on the grandparent, as the petitioning party. The rebuttable

presumption seems merely to confirm this fact. As explained in the official

comment to Evidence Code section 606 by the Assembly Committee on Judiciary,

a presumption affecting the burden of proof has “no effect” where “the party

against whom the presumption operates already has the same burden of proof as to

the nonexistence of the presumed fact.” (Assem. Judiciary Com. com., 29B Pt. 2

West’s Ann. Evid. Code (1995 ed.) Foll. § 606, p. 65.) The official comment to

Evidence Code section 606 also explains that “[i]n the ordinary case, the party

against whom” such a presumption operates merely has “the burden of proving the

nonexistence of the presumed fact by a preponderance of the evidence.” (Assem.

Judiciary Com. com., 29B Pt. 2 West’s Ann. Evid. Code (1995 ed.) § 606, p. 64.)

Consistent with this comment, Evidence Code section 115 provides that “[e]xcept

as otherwise provided by law, the burden of proof requires proof by a

preponderance of the evidence.” If the preponderance standard applies here, then

the rebuttable presumption under Family Code section 3104, subdivision (f),

simply puts the burden on a petitioning grandparent to convince a judge that

visitation over the custodial parent’s objection is “more likely than not” in the

child’s best interest. (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 845,

17



851.) So construed, the presumption does not, as the majority asserts, “prevent the

situation that arose in Troxel in which the court-ordered visitation over the

objection of the child’s sole surviving fit parent based upon a finding that such

visitation was in the child’s best interest.” (Maj. opn., ante, at p. 19.) On the

contrary, so construed, the presumption expressly contemplates and provides for

that very situation. It also gives virtually no special weight to the custodial

parent’s decision.

Contrary to the majority’s assertion, the high court in Troxel did not declare

otherwise. (Maj. opn., ante, at p. 19.) The majority asserts that by citing section

3104 “with approval,” the “high court” in Troxel “recognized” that section 3104

“gives ‘special weight’ to the parents’ decision.” (Maj. opn., ante, at pp. 19-20.)

However, the citation to section 3104 on which the majority relies appeared in

Justice O’Connor’s plurality opinion and was not endorsed by a majority of the

court. (Troxel, supra, 530 U.S. at p. 70 (plur. opn. by O’Connor, J.).) Moreover,

the plurality in Troxel did not cite section 3104 “with approval” (maj. opn., ante,

at p. 19); it merely included a “cf.” citation to section 3104 after explaining that a

Washington court, in granting visitation, had “failed to provide any protection for

[the parent’s] fundamental constitutional right to make decisions concerning the

rearing of her own daughters.” (Troxel, supra, 530 U.S. at p. 70 (plur. opn. by

O’Connor, J.), italics added.) In context, this citation suggests that in the view of

the Troxel plurality, unlike the Washington court—which failed to provide any

protection for a parent’s fundamental right—section 3104 provides at least some

protection. However, the Troxel plurality did not, as the majority asserts,

conclude or even suggest that the protection section 3104 provides is

constitutionally adequate. On the contrary, the Troxel plurality expressly declined

to specify what minimum level of protection is constitutionally required,

explaining: “We do not, and need not, define today the precise scope of the

parental due process right in the visitation context. . . . [T]he constitutionality of

18



any standard for awarding visitation turns on the specific manner in which that

standard is applied . . . and the constitutional protections in this area are best

‘elaborated with care.’ [Citation.]” (Troxel, supra, 530 U.S. at p. 73.) Thus,

contrary to the majority’s assertion, the Troxel plurality’s unadorned citation of

section 3104 does not establish the statute’s constitutionality.

Nevertheless, we may “construe” the statute to preserve its constitutionality

“by requiring clear and convincing evidence” to rebut the presumption that

visitation by a petitioning grandparent over a custodial parent’s objection is not in

the child’s best interest.5 (Conservatorship of Wendland (2001) 26 Cal.4th 519,

543 (Wendland).) Section 3104 is silent regarding the standard of proof, so

construing it to require clear and convincing evidence “does not entail a deviation

from the language of the statute . . . .” (Wendland, supra, 26 Cal.4th at p. 543.)

As noted above, Evidence Code section 115 provides that the preponderance

standard applies “[e]xcept as otherwise provided by law.” “ ‘Law,’ as referenced

in [this section], includes ‘constitutional, statutory, and decisional law.’ (Evid.

Code, § 160.)” (Wiener v. Fleischman (1991) 54 Cal.3d 476, 483 (Wiener).)

Taken together, these sections establish that the preponderance standard applies

“ ‘unless a heavier or lesser burden of proof is specifically required . . . by

constitutional, statutory, or decisional law.’ ” (People v. Burnick (1975) 14 Cal.3d

306, 314, italics omitted.) Thus, it is both necessary and appropriate for us to

“determine whether constitutional, statutory or decisional law (i.e., case law)


5

Adopting this standard of proof in all visitation cases is not inconsistent

with the Troxel plurality’s refusal to make broad pronouncements about a statute’s
facial constitutionality. The high court “never has approved case-by-case
determination of the proper standard of proof for a given proceeding.” (Santosky,
supra, 455 U.S. at p. 757.) As the court has explained, because “the litigants and
the factfinder must know at the outset of a given proceeding how the risk of error

(Footnote continued on next page.)

19



requires a burden of proof higher than preponderance of the evidence to”

overcome the presumption under section 3104, subdivision (f). (Wiener, supra, 54

Cal.3d at p. 483; see also Santosky, supra, 455 U.S. at pp. 755-756 [determining

“degree of proof required . . . ‘is the kind of question which has traditionally been

left to the judiciary’ ”].) We must ensure that the applicable standard of proof

“satisfies ‘the constitutional minimum of “fundamental fairness.” ’ [Citations.]”6

(Santsoky, supra, 455 U.S. at p. 756, fn. 8.)

“The function of a standard of proof, as that concept is embodied in the

Due Process Clause and in the realm of factfinding, is to ‘instruct the factfinder

concerning the degree of confidence our society thinks [the factfinder] should

have in the correctness of factual conclusions for a particular type of adjudication.’

[Citation.] The standard serves to allocate the risk of error between the litigants

and to indicate the relative importance attached to the ultimate decision.”

(Addington v. Texas (1979) 441 U.S. 418, 423 (Addington); see also In re Angelia

P. (1981) 28 Cal.3d 908, 919 [quoting Addington].) As the high court has

explained, where “society has a minimal concern with the outcome” of a case—

such as with “the typical civil case involving a monetary dispute between private

parties”—the “preponderance” standard applies. (Addington, supra, 441 U.S. at p.

423.) Application of this relatively low standard reflects society’s “minimal



(Footnote continued from previous page.)

will be allocated, the standard of proof necessarily must be calibrated in advance.”
(Ibid.)
6

The Court of Appeal recognized this responsibility and construed section

3104 to require clear and convincing evidence. Despite this holding and the fact
that the parties and amici curiae have briefed the issue in this court, the majority
does not even mention it.

20



concern” in these cases by allocating the risk of error “in roughly equal fashion.”

(Ibid.; see also Wiener, supra, 54 Cal.3d at p. 488.)

On the other hand, in civil cases where “[t]he interests at stake . . . are . . .

more substantial than mere loss of money,” the “clear and convincing evidence”

standard applies. (Addington, supra, 441 U.S. at pp. 424-425.) Because society

has a greater concern with the outcome of these cases, we apply a standard of

proof “requiring that the evidence be ‘so clear as to leave no substantial doubt;

sufficiently strong to command the unhesitating assent of every reasonable mind.’

[Citation.]” (In re Angelia P., supra, 28 Cal.3d at p. 919.) We have held that

“[p]roof by clear and convincing evidence is required ‘where particularly

important individual interests or rights are at stake,’ such as the termination of

parental rights, involuntary commitment, and deportation. [Citation.]” (Wiener,

supra, 54 Cal.3d at p. 487; see also Wendland, supra, 26 Cal.4th at pp. 546-547.)

Similarly, the high court “has applied [this] standard in cases implicating

fundamental liberty interests protected by the Fourteenth Amendment, such as

proceedings to terminate parental rights [citation] . . . .” (Wendland, supra, 26

Cal.4th at pp. 546-547; see also Santosky, supra, 455 U.S. at p. 756 [“[t]his Court

has mandated” the clear and convincing standard “when the individual interests at

stake in a state proceeding are both ‘particularly important’ and ‘more substantial

than mere loss of money’ ”]; Addington, supra, 441 U.S. at p. 424 [“this Court has

used the ‘clear, unequivocal and convincing’ standard of proof to protect

particularly important individual interests in various civil cases”].) As the high

court has explained, “adopting a ‘standard of proof is more than an empty

semantic exercise.’ [Citation.] In cases involving individual rights, whether

criminal or civil, ‘[the] standard of proof [at a minimum] reflects the value society

places on individual liberty.’ [Citation.]” (Id. at p. 425.)

Applying these principles, I conclude, as did the Court of Appeal, that the

“clear and convincing evidence” standard must be applied in determining whether

21



a court, on the state’s behalf, may grant visitation rights to grandparents over the

objection of a child’s custodial parent. As explained above, a parent’s

constitutionally protected liberty interest in directing his or her child’s upbringing

is both fundamental and compelling; it is possibly the oldest fundamental liberty

interest the high court has recognized and is ranked among the most basic of civil

rights. (Troxel, supra, 530 U.S. at p. 65 (plur. opn. of O’Connor, J.); In re B.G.,

supra, 11 Cal.3d at p. 688.) As also explained above, the right of parents to decide

with whom their children may associate lies at the core of this fundamental

constitutional liberty interest. (Troxel, supra, 530 U.S. at p. 80 (conc. opn. of

Thomas. J.); Punsly v. Ho, supra, 87 Cal.App.4th at p. 1107; Hoff, supra, 595

N.W.2d at p. 291; Lulay, supra, 739 N.E.2d at p. 531.) Of course, as already

noted, the state has a compelling interest in the child’s welfare. Moreover,

questions regarding visitation by third parties also implicate the child’s interests.

(Troxel, supra, 530 U.S. at pp. 86, 88 (dis. opn. of Stevens, J.).) However, as the

plurality in Troxel recently explained, “there is a presumption that fit parents act in

the best interests of their children. . . . Accordingly, so long as a parent [is fit],

there will normally be no reason for the State to inject itself into the private realm

of the family to further question the ability of that parent to make the best

decisions concerning the rearing of that parent’s children. [Citation.]” (Id. at p.

68 (plur. opn. of O’Connor, J.).) Thus, until proven otherwise, “the child and his

[or her] parents share a vital interest in preventing erroneous” state interference in

their relationship, and their interests “coincide to favor use of error-reducing

procedures.” (Santosky, supra, 455 U.S. at pp. 760-761.)

Moreover, the nature of the factual determination a court must make under

section 3104—whether visitation is in the child’s best interests—heightens the risk

of error. The high court has observed that the “ ‘best interests’ ” standard is

“vague” and that “judges . . . utilizing [it] . . . may find it difficult . . . to avoid

decisions resting on subjective values.” (Smith v. Organization of Foster Families

22



(1977) 431 U.S. 816, 835, fn. 36; see also Troxel, supra, 530 U.S. at p. 101 (dis.

opn. of Kennedy, J.) [“best interests” test “has at times been criticized as

indeterminate, leading to unpredictable results”].) In holding that the federal due

process clause requires application of a clear and convincing evidence test in

parental neglect proceedings, the high court in Santosky also explained that

because this “imprecise substantive standard[] . . . leave[s] determinations

unusually open to the subjective values of the judge,” it “magnif[ies] the risk of

erroneous factfinding.” (Santosky, supra, 455 U.S. at p. 762, italics added.) The

court in Santosky went on to explain that “[c]oupled with a ‘fair preponderance of

the evidence’ standard,” the best interest test “create[s] a significant prospect of

erro[r].” (Id. at p. 764.) Given the weight of the parent’s interest, the high court

concluded in Santosky that only the “ ‘clear and convincing evidence’ standard of

proof . . . adequately conveys to the factfinder the level of subjective certainty

about his factual conclusions necessary to satisfy due process.” (Id. at p. 769.)

“ ‘The individual should not be asked to share equally with society the risk of

error when the possible injury to the individual is significantly greater than any

possible harm to the state.’ [Citation.]” (Id. at p. 768.)

In light of the weight of the parent’s interest at stake here, I similarly

conclude that the “clear and convincing evidence” standard of proof is required

with regard to section 3104. As the Court of Appeal held, this standard “is

necessary to assure [that] adequate deference is accorded to a fit parent’s decisions

about raising his or her children.” A lower standard of proof creates too great a

risk of “having a court [merely] substitute its own views” regarding the child’s

best interests “for those of a fit parent.” And, as the plurality explained in Troxel,

“the Due Process Clause does not permit a State to infringe on the fundamental

right of parents to make child rearing decisions simply because a state judge

believes a ‘better’ decision could be made.” (Troxel, supra, 530 U.S. at pp. 72-73

(plur. opn. of O’Connor, J.).) Thus, I conclude that section 3104 is constitutional

23



only if we construe it to require a finding that visitation over the objection of a

custodial parent is not in the child’s best interest, absent clear and convincing

evidence to the contrary, i.e., evidence “ ‘ “sufficiently strong to command the

unhesitating assent of every reasonable mind.” ’ [Citation.]”7 (In re Angelia P.,

supra, 28 Cal.3d at p. 919.)

CONCLUSION




I am not insensitive to the tremendous hurt most grandparents feel when

they are cut off from their grandchildren. Moreover, like most people, I believe

that grandparents generally should be an integral part of a child’s upbringing and

that most of the time, they have an extremely positive impact on the child. Thus,

“[i]n an ideal world, parents might always seek to cultivate the bonds between


7

Karen asserts, and the Court of Appeal held, that section 3104 is

unconstitutional unless construed to require a showing of actual or potential harm.
In most cases, the elevated standard of proof I would impose—clear and
convincing evidence to rebut the presumption that visitation over the custodial
parent’s objection is not in the child’s best interest—will require grandparents
seeking visitation to show that denial of visitation would result in some kind of
harm or potential harm to the child. Moreover, as previously noted, in addition to
a finding regarding the child’s best interest, section 3104 prohibits court-ordered
visitation unless “there is a preexisting relationship between the grandparent and
the grandchild that has engendered a bond” between them, and the court considers
“the right of the parents to exercise their parental authority.” (§ 3104, subd. (a)(1),
(2).) Given these requirements, I am not prepared to say that section 3104 is
facially unconstitutional unless construed to require a showing of harm or
potential harm. (See Troxel, supra, 530 U.S. at p. 73 (plur. opn. of O’Connor, J.)
[declining to consider “whether the Due Process Clause requires all nonparental
visitation statutes to include a showing of harm or potential harm”]; id. at pp. 85-
86 (dis. opn. of Stevens, J.) [rejecting view that showing of actual or potential
harm is required]; id. at p. 94 (dis. opn. of Kennedy, J.) [rejecting view that
showing of actual or potential harm is required in every case].) Of course, the
statute’s application in any particular case may be unconstitutional. Whether that

(Footnote continued on next page.)

24



grandparents and their grandchildren.” (Troxel, supra, 530 U.S. at p. 70 (plur.

opn. of O’Connor, J.).) Unfortunately, as we all know, “our world is far from

perfect, and in it the decision whether such an intergenerational relationship would

be beneficial . . . is for the parent to make in the first instance.” (Ibid.) Family

privacy is grounded on the right of parents to rear their children without

unwarranted state interference. Therefore, the issue here is not whether interaction

between grandparents and their grandchildren is desirable, but whether, and under

what circumstances, the state may constitutionally interfere with the rights of a fit

custodial parent by ordering visitation over the parent’s objection. Based on the

governing precedent, I conclude that court-ordered visitation infringes on a

custodial parent’s fundamental right to direct his or her child’s upbringing, and

that this state infringement on a parent’s fundamental right is unconstitutional

absent clear and convincing evidence to rebut the presumption under section 3104,

subdivision (f), that such visitation is not in the child’s best interests. I dissent to

the extent the majority holds otherwise.

CHIN, J.



(Footnote continued from previous page.)

is so here cannot be determined until after the trial court has had an opportunity on
remand to apply the correct standard of proof.

25







CONCURRING AND DISSENTING OPINION BY BROWN, J.

I agree with the majority that Family Code1 section 3104 controls this case,

that the section is facially constitutional, and that the matter should be remanded for

the trial court to reconsider its July 2000 visitation order in light of section 3104,

subdivision (f). I disagree with the majority that an order imposing grandparent

visitation would never infringe on a sole custodial parent’s constitutional rights if

the child’s noncustodial parent, who in this case had no visitation rights, had not

seen his five-year-old daughter in five years, and has since had his own parental

rights terminated, supported such visitation. Moreover, I agree with Justice Baxter

that any conclusion regarding the mother’s as-applied challenge to section 3104 is

premature unless and until the statute is actually applied on remand. (Conc. and dis.

opn. by Baxter, J., ante, at pp. 1-4.)

In addition, “to minimize the possibility of its unconstitutional application,” I

agree with Justice Chin to the extent he concludes section 3104, subdivision (f),

should be read to require clear and convincing evidence to rebut the presumption

that grandparent visitation is not in the child’s best interest if the sole custodial

parent objects. (Conservatorship of Wendland (2001) 26 Cal.4th 519, 543.)

Indeed, absent such a standard of proof, parents would encounter not only

unwarranted judicial intrusion into their private lives, but would also incur


1

All further statutory references are to this code.

1



significant costs in seemingly unending litigation that would undermine their

ability to care for the very children the statute is presumably intended to protect.

Nevertheless, it is also critical to acknowledge that “[c]ases like this do not

present a bipolar struggle between the parents and the State over who has final

authority to determine what is in a child’s best interests. There is at a minimum a

third individual, whose interests are implicated in every case to which the statute

applies–the child.” (Troxel v. Granville (2000) 530 U.S. 57, 86 (dis. opn. of

Stevens, J.) (Troxel).) Indeed, under the statutory scheme in question, the

Legislature expressly requires the trial court to “[b]alance[] the interest of the child

in having visitation with the grandparent against the right of the parents to exercise

their parental authority.” (§ 3104, subd. (a)(2).) Guided judicial discretion

regarding this factor “protect[s] children against the arbitrary exercise of parental

authority that is not in fact motivated by an interest in the welfare of the child.”

(Troxel, at p. 89 (dis. opn. of Stevens, J.).)

Suppose grandparents have for years devoted themselves to nurturing and

raising a grandchild, acting essentially as de facto parents under circumstances in

which their own child, the natural parent, has personal difficulties rendering her

incapable of caring for her own child. Such grandparents fill an incalculable void

in the child’s life, and have “developed a relationship with [the] child which is not

necessarily subject to absolute parental veto.” (Troxel, supra, 530 U.S. at p. 98

(dis. opn. of Kennedy, J.).) If the natural parent at some point begins to

adequately care for her own child, and arbitrarily terminates contact between the

grandparents and the child, it would seem the grandparents could adduce clear and

convincing evidence that the child’s best interests are not being served.

In a perfect world, family conflicts would not deteriorate into public brawls;

courts would not be required to intervene. Parents would always act rationally and

2



in the best interests of their offspring, and children would never be used as pawns

or treated as chattel. But we do not live in a perfect world. When courts are

forced to intrude, we must rely on burdens of proof and judicial balancing acts to

protect a significant sphere of parental authority and preserve as much flexibility

as possible. This is not the best of all possible worlds, it is just the best we can do.

Here, Emily is now nearly 10, and capable of voicing her own preferences.

Her mother is a fit parent who did not oppose visitation, but who reasonably

objected to the expansive order regarding her then five-year-old daughter. (Maj.

opn., ante, at pp. 7-8.) And at this point the father’s parental rights have been

terminated, and hence his views regarding grandparent visitation are not relevant.

The trial court may of course consider all of these circumstances on remand in

determining whether any visitation order is appropriate at this point under section

3104, and if so, the scope of that order. (See maj. opn., ante, at p. 26.)

BROWN, J.

3



See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re Marriage of Harris
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 92 Cal.App.4th 499
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S101836
Date Filed: August 23, 2004
__________________________________________________________________________________

Court:
Superior
County: San Diego
Judge: Thomas Ashworth III

__________________________________________________________________________________

Attorneys for Appellant:

Family Law Appellate Associates, Law Offices of Jeffrey W. Doeringer and Jeffrey W. Doeringer for
Appellant.

Karen A. Wyle; Julie E. Mumma; Guralnick & Gilliland, and Anne L. Rauch for The Coalition for
Restoration of Parental Rights as Amicus Curiae on behalf of Appellant.

Martha Matthews, Mark D. Rosenbaum; Charles A. Bird, Jordan C. Budd; Joan H. Hollinger; Shannon
Minter; and Shannan Wilber for ACLU Foundation of Southern California, ACLU Foundation of San
Diego and Imperial Counties, Child Advocacy Program Law School—Boalt Hall, National Center for
Lesbian Rights and Youth Law Center as Amici Curiae on behalf of Appellant.

__________________________________________________________________________________

Attorneys for Respondent:

Law Office of Paul W. Leehey and Paul W. Leehey for Respondents.

William Wesley Patton for Whittier Law School Legal Policy Clinic as Amicus Curiae on behalf of
Respondents.

David Borges; Law Offices of Gollub & Golsan, Lorraine Gollub; Cooper-Gordon, Freida Gordon; Dawn
Gray; Stephen Temko; Woodruff, O’Hair & Posner and D. Thomas Woodruff for the Association of
Certified Family Law Specialists as Amicus Curiae on behalf of Respondents.

Myron Dean Quon, Patricia M. Logue and Jon W. Davidson for Lambda Legal Defense and Education
Fund, Inc., as Amicus Curiae on behalf of Respondents.


1



Lawrence E. Fluharty for the Los Angeles Chapter of the National Association of Counsel for Children as
Amicus Curiae.


2







Counsel who argued in Supreme Court (not intended for publication with opinion):

Jeffrey W. Doeringer
Law Offices of Jeffrey W. Doeringer
16152 Beach Blvd., Suite 121
Huntington Beach, CA 92647
(714) 841-6116

Paul W. Leehey
Law Office of Paul W. Leehey
205 W. Alvarado Street
Fallbrook, CA 92028
(760) 723-0711

3

Opinion Information
Date:Docket Number:
Mon, 08/23/2004S101836

Parties
1Harris, Charles Erik (Respondent)
Represented by Paul W. Leehey
Attorney at Law
205 West Alvarado Street
Fallbrook, CA

2Harris, Leanne (Respondent)
Represented by Paul W. Leehey
Attorney at Law
205 West Alvarado Street
Fallbrook, CA

3Butler, Karen (Appellant)
Represented by Jeffrey W. Doeringer
Law Offices of Jeffrey W. Doeringer
16152 Beach Blvd., Suite 121
Huntington Beach, CA

4Karen And Charles Erik Harris (Overview party)
5Whittier Law Schoolpatton (Amicus curiae)
3333 Harbor Boulevard
Costa Mesa, CA 92626

Represented by William Wesley Patton
Whittier Law School
3333 Harbor Blvd.
Costa Mesa, CA

6Association Of Certified Family Law Specialists (Amicus curiae)
Represented by Dawn Gray
Attorney at Law
12036 Nevada City Hwy., #195
Grass Valley, CA

7Coalition For Restoration Of Parental Rights (Amicus curiae)
Represented by Anne Lorentzen Rauch
Epsten Grinnell & Howell
9980 Carroll Cyn Rd 2FL
San Diego, CA

8Aclu Foundation Of Southern California, Inc. (Amicus curiae)
Represented by Martha Alys Matthews
ACLU Foundation of Southern CA
1616 Beverly Boulevard
Los Angeles, CA

9Aclu Foundation Of Southern California, Inc. (Amicus curiae)
Represented by Mark D. Rosenbaum
Aclu Foundation Of Southern California
1616 Beverly Blvd
Los Angeles, CA

10Aclu Foundation Of San Diego & Imperial Counties, Inc. (Amicus curiae)
Represented by Charles A. Bird
ACLU Foundation of San Diego and Imperial Counties
P.O. Box 87131
San Diego, CA

11Aclu Foundation Of San Diego & Imperial Counties, Inc. (Amicus curiae)
Represented by Jordan Charles Budd
ACLU Foundation of San Diego and Imperial Counties
P.O. Box 87131
San Diego, CA

12Child Advocacy Program Law School - Boalt Hall (Amicus curiae)
attn: Joan Heifetz Hollinger
University of California
Berkeley, CA 94720

13National Center For Lesbian Rights (Amicus curiae)
Represented by Shannon Minter
National Center for Lesbian Rights
870 Market Street, Suite 570
San Francisco, CA

14Legal Services For Children (Amicus curiae)
Represented by Shannan Leigh Wilber
Legal Services for Children
1254 Market Street, 3rd Floor
San Francisco, CA

15Lambda Legal Defense & Education Fund, Inc. (Amicus curiae)
Represented by Jon Warren Davidson
Lambda Legal Defense And Education Fund
3325 Wilshire Blvd., Suite 1300
Los Angeles, CA


Disposition
Aug 23 2004Opinion: Affirmed

Dockets
Nov 5 2001Petition for review filed
  By counsel for Respondents {Charles and Leanne Harris}
Nov 5 2001Record requested
 
Nov 6 2001Received Court of Appeal record
  1-doghouse & briefs
Nov 15 2001Request for depublication (petition for review pending)
  filed by professor William Wesley Patton from Whittier Law School Legal Policy Clinic.
Nov 21 2001Answer to petition for review filed
  appellant Karen Butler
Dec 4 2001Reply to answer to petition filed
  by counsel for respondents Charles Harris Jr. & Leanne Harris. **40n**
Jan 3 2002Petition for Review Granted (civil case)
  Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown & Moreno, JJ.
Jan 24 2002Note:
 
Jan 28 2002Received:
  premature application and amicus brief from Whittier Law School Legal Policy Clinic.
Feb 5 2002Opening brief on the merits filed
  by respondents Charles Harris Jr. & Leanne Harris (grandparents). **40n**
Feb 25 2002Application to file over-length brief filed
  Answer brief on the merits with 9 excess pages from counsel for appellant Karen Butler.
Feb 25 2002Answer brief on the merits filed
  (with permission) by counsel for appellant Karen Butler.
Mar 5 2002Letter sent to:
  Professor William Patton from Whittier Law School Legal Policy Clinic. Premature request, proposed amicus brief and copies received 1/28/02 returned pursuant to rule 29.3(c).
Mar 19 2002Reply brief filed (case fully briefed)
  by respondents Charles Harris Jr. & Leanne Harris (grandparents). **40k**
Apr 2 2002Received application to file Amicus Curiae Brief
  Assn of Certified Family Law Specialists [brief & applctn sep] [in support of respondents]
Apr 4 2002Received application to file Amicus Curiae Brief
  from Whittier Law School Legal Policy Clinic. (appli & brief separate)
Apr 9 2002Permission to file amicus curiae brief granted
  Association of Certified Family Law Specialists in support of respondents.
Apr 9 2002Amicus Curiae Brief filed by:
  Association of Certified Family Law Specialists in support of respondents. **Answer due within 20 days.**
Apr 9 2002Permission to file amicus curiae brief granted
  Whittier Law School Legal Policy Clinic.
Apr 9 2002Amicus Curiae Brief filed by:
  Whittier Law School Legal Policy Clinic. **Answer due within 20 days.**
Apr 12 2002Application to appear as counsel pro hac vice (granted case)
  Karen A. Wyle counsel for amicus curiae The Coalition For The Restoration of Parental Rights. Received fax copy of amended POS to include State Bar. Hard copy to follow.
Apr 12 2002Received application to file Amicus Curiae Brief
  from The Coalition For The Restoration of Parental Rights in support of appellant. Recv'd fax copy of amended POS to include service on State Bar. Hard copy to follow.
Apr 16 2002Received document entitled:
  Amended proof of service for amicus brief received 4/12 from The Coalition For The Restoration of Parental Rights.
Apr 16 2002Received document entitled:
  Amended Proof of Service for application to appear pro hac vice filed 4/12/02 by Karen A. Wyle.
Apr 17 2002Application to appear as counsel pro hac vice granted
  "The application of Karen A. Wyle of the State of Indiana for admission Pro Hac Vice to appear on behalf of an amicus is hereby granted."
Apr 17 2002Permission to file amicus curiae brief granted
  The Coalition For The Restoration of Parental Rights in support of appellant.
Apr 17 2002Amicus Curiae Brief filed by:
  The Coalition For The Restoration of Parental Rights in support of appellant. Answer due within 20 days.
Apr 18 2002Received application to file amicus curiae brief; with brief
  Lambda Legal Defense and Education Fund, Inc. [supporting resps]
Apr 19 2002Received application to file Amicus Curiae Brief
  from the ACLU Foundation of San Diego and Imperial Counties, the ACLU Foundation of Southern Calif., Legal Services for Children, the National Center for Lesbian Rights, and Professor Joan Hollinger, Director of the Children's Advocacy Clinic of the University of Calif, Berkeley School of Law in support of appellant Karen Butler. **timely - rule 40k** **Cover of ac briefs submitted w/white covers. Counsel to send corrected briefs o/n. **rule 14e** 4/22/02 Corrected briefs received.
Apr 23 2002Permission to file amicus curiae brief granted
  ACLU Foundation of San Diego and Imperial Counties et al.
Apr 23 2002Amicus Curiae Brief filed by:
  the ACLU Foundation of San Diego and Imperial Counties, the ACLU Foundation of Southern Calif., Legal Services for Children, the National Center for Lesbian Rights, and Professor Joan Hollinger, Director of the Children's Advocacy Clinic of the University of Calif, Berkeley School of Law in support of appellant Karen Butler. **Answer due within 20 days.**
Apr 26 2002Received:
  from counsel for appellant, answer to ac briefs by Assoc. of Certified Family Law Specialists and Whittier Law School Legal Policy Clinic. (To court for permission to file consolidated answer.)
Apr 30 2002Response to amicus curiae brief filed
  by counsel for appellant, consolidated answer to ac briefs by Assoc. of Certified Family Law Specialists and Whittier Law School Legal Policy Clinic. (Filed with permission.)
Apr 30 2002Permission to file amicus curiae brief granted
  Lambda Legal Defense and Education fund, Inc. in support of respondents. Answer by any party may be served and filed within 20 days of the filing of the brief.
Apr 30 2002Amicus Curiae Brief filed by:
  Lamba Legal Defense and Education Fund, Inc. in support of respondents.
May 7 2002Response to amicus curiae brief filed
  Respondents {Charles Harris JR., and Leanne Harris} consolidated response to AC Briefs of ACLU, CRPR and Lambda Legal Defense.
Oct 16 2002Telephone conversation with:
  Paul Leehey, counsel for grandparents (respondents) informing the court that the case maybe settled in the near future. Counsel advised to fax letter to court regarding status of case.
Oct 21 2002Change of Address filed for:
  Amicus Lambda Legal Defense and Education Fund, Inc..
Nov 1 2002Filed letter from:
  Jeffrey Doeringer, counsel for appellant regarding docket entry of 10/16/02 informing the court that nothing is settled and that the matter is ready for oral argument setting.
Jan 23 2003Filed letter from:
  J. Doeringer re unavailability for oral argument from 4/30 to 5/10, 2003
Sep 15 2003Filed letter from:
  counsel for appellant dated 9/11/03.
Mar 10 2004Request for judicial notice filed (granted case)
  by counsel for appellant Karen Butler
Mar 10 2004Filed:
  letter from counsel regarding change of law firm's name for counsel for appellant Karen Butler
Apr 28 2004Case ordered on calendar
  5-26-04, S.F. @ 9:00 a.m.
May 4 2004Request for judicial notice granted
  Appellant's request for judicial notice, filed March 10, 2004, is granted.
May 10 2004Note: Mail returned and re-sent
  cover that apparantely was incorrect. ORAL ARGUMENT CALENDAR.
May 13 2004Supplemental brief filed
  Appellant ( Karen Butler).
May 17 2004Note: Mail returned and re-sent
 
May 24 2004Request for judicial notice filed (granted case)
  Respondents ( Charles Harris, et al.)
May 26 2004Cause argued and submitted
 
Jun 23 2004Request for judicial notice denied
  The request for judicial notice filed on May 24, 2004, is denied.
Aug 23 2004Opinion filed: Judgment affirmed in full
  to the extent it reversed the order for grandparent visitation. The matter is remanded to the Court of Appeal with directions to remand the matter to the superior court for reconsideration of the order for grandparent visitation in light of the views expressed in this opinion and the superior court's subsequent order terminating the father's parental rights. Majority Opinion by Moreno, J. ----- Joined by George, CJ., Kennard, Werdegar, JJ. Concurring and Dissenting Opinion by Baxter, J. Concurring and Dissenting Opinion by Chin, J. Concurring and Dissenting Opinion by Brown, J.
Sep 7 2004Rehearing petition filed
  by counsel for respondents.
Sep 9 2004Time extended to consider modification or rehearing
  to and including Nov. 19, 2004.
Sep 14 2004Answer to rehearing petition filed
  by counsel for appellants.
Oct 20 2004Rehearing denied
 
Oct 20 2004Remittitur issued (civil case)
 
Oct 29 2004Received:
  receipt for remittitur.

Briefs
Feb 5 2002Opening brief on the merits filed
 
Feb 25 2002Answer brief on the merits filed
 
Mar 19 2002Reply brief filed (case fully briefed)
 
Apr 9 2002Amicus Curiae Brief filed by:
 
Apr 9 2002Amicus Curiae Brief filed by:
 
Apr 17 2002Amicus Curiae Brief filed by:
 
Apr 23 2002Amicus Curiae Brief filed by:
 
Apr 30 2002Response to amicus curiae brief filed
 
Apr 30 2002Amicus Curiae Brief filed by:
 
May 7 2002Response to amicus curiae brief filed
 
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