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
Date: | Docket Number: |
Mon, 08/23/2004 | S101836 |
1 | Harris, Charles Erik (Respondent) Represented by Paul W. Leehey Attorney at Law 205 West Alvarado Street Fallbrook, CA |
2 | Harris, Leanne (Respondent) Represented by Paul W. Leehey Attorney at Law 205 West Alvarado Street Fallbrook, CA |
3 | Butler, Karen (Appellant) Represented by Jeffrey W. Doeringer Law Offices of Jeffrey W. Doeringer 16152 Beach Blvd., Suite 121 Huntington Beach, CA |
4 | Karen And Charles Erik Harris (Overview party) |
5 | Whittier 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 |
6 | Association Of Certified Family Law Specialists (Amicus curiae) Represented by Dawn Gray Attorney at Law 12036 Nevada City Hwy., #195 Grass Valley, CA |
7 | Coalition For Restoration Of Parental Rights (Amicus curiae) Represented by Anne Lorentzen Rauch Epsten Grinnell & Howell 9980 Carroll Cyn Rd 2FL San Diego, CA |
8 | Aclu Foundation Of Southern California, Inc. (Amicus curiae) Represented by Martha Alys Matthews ACLU Foundation of Southern CA 1616 Beverly Boulevard Los Angeles, CA |
9 | Aclu Foundation Of Southern California, Inc. (Amicus curiae) Represented by Mark D. Rosenbaum Aclu Foundation Of Southern California 1616 Beverly Blvd Los Angeles, CA |
10 | Aclu 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 |
11 | Aclu 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 |
12 | Child Advocacy Program Law School - Boalt Hall (Amicus curiae) attn: Joan Heifetz Hollinger University of California Berkeley, CA 94720 |
13 | National Center For Lesbian Rights (Amicus curiae) Represented by Shannon Minter National Center for Lesbian Rights 870 Market Street, Suite 570 San Francisco, CA |
14 | Legal Services For Children (Amicus curiae) Represented by Shannan Leigh Wilber Legal Services for Children 1254 Market Street, 3rd Floor San Francisco, CA |
15 | Lambda 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 2004 | Opinion: Affirmed |
Dockets | |
Nov 5 2001 | Petition for review filed By counsel for Respondents {Charles and Leanne Harris} |
Nov 5 2001 | Record requested |
Nov 6 2001 | Received Court of Appeal record 1-doghouse & briefs |
Nov 15 2001 | Request for depublication (petition for review pending) filed by professor William Wesley Patton from Whittier Law School Legal Policy Clinic. |
Nov 21 2001 | Answer to petition for review filed appellant Karen Butler |
Dec 4 2001 | Reply to answer to petition filed by counsel for respondents Charles Harris Jr. & Leanne Harris. **40n** |
Jan 3 2002 | Petition for Review Granted (civil case) Votes: George, CJ., Kennard, Baxter, Werdegar, Chin, Brown & Moreno, JJ. |
Jan 24 2002 | Note: |
Jan 28 2002 | Received: premature application and amicus brief from Whittier Law School Legal Policy Clinic. |
Feb 5 2002 | Opening brief on the merits filed by respondents Charles Harris Jr. & Leanne Harris (grandparents). **40n** |
Feb 25 2002 | Application to file over-length brief filed Answer brief on the merits with 9 excess pages from counsel for appellant Karen Butler. |
Feb 25 2002 | Answer brief on the merits filed (with permission) by counsel for appellant Karen Butler. |
Mar 5 2002 | Letter 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 2002 | Reply brief filed (case fully briefed) by respondents Charles Harris Jr. & Leanne Harris (grandparents). **40k** |
Apr 2 2002 | Received application to file Amicus Curiae Brief Assn of Certified Family Law Specialists [brief & applctn sep] [in support of respondents] |
Apr 4 2002 | Received application to file Amicus Curiae Brief from Whittier Law School Legal Policy Clinic. (appli & brief separate) |
Apr 9 2002 | Permission to file amicus curiae brief granted Association of Certified Family Law Specialists in support of respondents. |
Apr 9 2002 | Amicus Curiae Brief filed by: Association of Certified Family Law Specialists in support of respondents. **Answer due within 20 days.** |
Apr 9 2002 | Permission to file amicus curiae brief granted Whittier Law School Legal Policy Clinic. |
Apr 9 2002 | Amicus Curiae Brief filed by: Whittier Law School Legal Policy Clinic. **Answer due within 20 days.** |
Apr 12 2002 | Application 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 2002 | Received 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 2002 | Received document entitled: Amended proof of service for amicus brief received 4/12 from The Coalition For The Restoration of Parental Rights. |
Apr 16 2002 | Received document entitled: Amended Proof of Service for application to appear pro hac vice filed 4/12/02 by Karen A. Wyle. |
Apr 17 2002 | Application 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 2002 | Permission to file amicus curiae brief granted The Coalition For The Restoration of Parental Rights in support of appellant. |
Apr 17 2002 | Amicus Curiae Brief filed by: The Coalition For The Restoration of Parental Rights in support of appellant. Answer due within 20 days. |
Apr 18 2002 | Received application to file amicus curiae brief; with brief Lambda Legal Defense and Education Fund, Inc. [supporting resps] |
Apr 19 2002 | Received 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 2002 | Permission to file amicus curiae brief granted ACLU Foundation of San Diego and Imperial Counties et al. |
Apr 23 2002 | Amicus 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 2002 | Received: 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 2002 | Response 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 2002 | Permission 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 2002 | Amicus Curiae Brief filed by: Lamba Legal Defense and Education Fund, Inc. in support of respondents. |
May 7 2002 | Response 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 2002 | Telephone 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 2002 | Change of Address filed for: Amicus Lambda Legal Defense and Education Fund, Inc.. |
Nov 1 2002 | Filed 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 2003 | Filed letter from: J. Doeringer re unavailability for oral argument from 4/30 to 5/10, 2003 |
Sep 15 2003 | Filed letter from: counsel for appellant dated 9/11/03. |
Mar 10 2004 | Request for judicial notice filed (granted case) by counsel for appellant Karen Butler |
Mar 10 2004 | Filed: letter from counsel regarding change of law firm's name for counsel for appellant Karen Butler |
Apr 28 2004 | Case ordered on calendar 5-26-04, S.F. @ 9:00 a.m. |
May 4 2004 | Request for judicial notice granted Appellant's request for judicial notice, filed March 10, 2004, is granted. |
May 10 2004 | Note: Mail returned and re-sent cover that apparantely was incorrect. ORAL ARGUMENT CALENDAR. |
May 13 2004 | Supplemental brief filed Appellant ( Karen Butler). |
May 17 2004 | Note: Mail returned and re-sent |
May 24 2004 | Request for judicial notice filed (granted case) Respondents ( Charles Harris, et al.) |
May 26 2004 | Cause argued and submitted |
Jun 23 2004 | Request for judicial notice denied The request for judicial notice filed on May 24, 2004, is denied. |
Aug 23 2004 | Opinion 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 2004 | Rehearing petition filed by counsel for respondents. |
Sep 9 2004 | Time extended to consider modification or rehearing to and including Nov. 19, 2004. |
Sep 14 2004 | Answer to rehearing petition filed by counsel for appellants. |
Oct 20 2004 | Rehearing denied |
Oct 20 2004 | Remittitur issued (civil case) |
Oct 29 2004 | Received: receipt for remittitur. |
Briefs | |
Feb 5 2002 | Opening brief on the merits filed |
Feb 25 2002 | Answer brief on the merits filed |
Mar 19 2002 | Reply brief filed (case fully briefed) |
Apr 9 2002 | Amicus Curiae Brief filed by: |
Apr 9 2002 | Amicus Curiae Brief filed by: |
Apr 17 2002 | Amicus Curiae Brief filed by: |
Apr 23 2002 | Amicus Curiae Brief filed by: |
Apr 30 2002 | Response to amicus curiae brief filed |
Apr 30 2002 | Amicus Curiae Brief filed by: |
May 7 2002 | Response to amicus curiae brief filed |