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Grandmother Not Entitled to Visitation

Posted By Azemika   |   Comments (0)
Child Custody & Visitation,

 

 

A California Court of Appeals has ruled that a Trial Court did not make a mistake in applying the clear and convincing standard to determine whether a grandmother, who sought visitation over the mother’s objection, had successfully rebutted the presumption that fit parents act in child’s best interests. In the case of Rich v. Thatcher, Mother gave birth to Father’s Child in December 2006. Mother, who was never married to Father and had custody of Child, did not get along with Father’s mother, with whom she differed over Father’s long-term drug use, among other things. Father filed a petition to establish his paternity of Child.

In 2010, while that matter was pending, Father died of drug overdose, leaving two suicide notes. After the coroner determined that Father’s death was a suicide, Grandmother refused to believe it and blamed Mother for the death. Later, Grandmother petitioned for joinder in the pending paternity action, seeking visitation with Child under California Family Code Section 3102 [permits grandparent visitation with child of deceased parent if in child’s best interests].

Mother opposed both the joinder and visitation requests, but Trial Court granted the joinder petition. At a lengthy evidentiary hearing in June of 2010, Trial Court heard testimony from nine witnesses, including Grandmother. Trial Court subsequently issued written opinion, finding that, based on the parties’ declarations and witness testimony, Grandmother’s veracity was questionable, Grandmother failed to show "a deep and abiding relationship" with Child, and Grandmother failed to provide clear and convincing evidence to rebut the presumption that Mother was acting in Child’s best interests by denying visitation or that doing so would be detrimental to Child. Alternatively, Trial Court concluded that, in light of longstanding animosity between Mother and Grandmother, it would not be in Child’s best interests to order visitation over Mother’s objections. Therefore, Trial Court denied Grandmother’s request for visitation.

Claiming that Trial Court was mistaken in applying the clear and convincing standard and abused its discretion by finding that visitation would not be in Child’s best interests, Grandmother appealed. Now, a California Court of Appeals has affirmed Trial Court’s decision. The Court of Appeals has ruled that (1) no prior case has determined whether clear and convincing standard applies to rebut the presumption that a fit parent acts in the child’s best interests; (2) higher burden of proof is necessary to give deference to a fit parent’s constitutional right to make decisions regarding his or her child’s care, custody, and control; (3) Grandmother failed to present sufficient evidence to rebut the presumption that Mother, a fit parent, was acting in Child’s best interests and to show that denying visitation would be detrimental to Child; (4) even if Trial Court had applied erroneous standard, its decision would still be affirmed on alternative best-interests grounds. The Court of Appeals holds that appropriate standard of proof for rebutting California Family Code Section 3102 presumption in grandparent visitation cases is clear and convincing evidence.


 

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