Compiled by:
Glen L. Rabenn, Certified Family Law
Specialist
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| United States Supreme Court Troxel v. Granville (2000)___ U.S.___ ,____ S.C. |
| Holding: | A Washington state law giving grandparents and others broad visitation rights unconstitutionally infringed on fundamental right of parents to raise their children |
| Facts: | Washington Rev. Code §§26.10.160(3) permits "[a]ny person" to petition for visitation rights "at any time" and authorizes state superior courts to grant such rights whenever visitation may serve a child's best interest. Pursuant to that statute, the parents of the deceased father petitioned for the right to visit their granddaughters. The girls' mother did not oppose all visitation, but objected to the amount sought by the grandparents. |
| Trial Court Ruling: | The Washington Superior Court ordered more visitation than the mother desired, and she appealed. The state court of appeal reversed and dismissed the grandparents' petition, and the Washington State Supreme Court affirmed. |
| Ruling on Appeal: | Affirmed. The Fourteenth Amendment's Due Process Clause protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. Washington's overly broad statute effectively permits a court to disregard and overturn any decision by a fit custodial parent concerning visitation whenever a third party affected by the decision files a visitation petition, based solely on the judge's determination of the child's best interest. A parent's estimation of the child's best interest is accorded no deference. The Washington statute created an impermissible presumption favoring grandparent visitation, placing the burden on the mother of disproving that visitation would be in her daughters' best interest. |
| Cross-reference: | Washington v. Glucksberg, 521 U. S. 702 |
| Comment: | The California Legislature will have to amend its grandparents and stepparents visitation statutes to comply with Troxel. |
| Grandparents: Family Code §3104 (e) and (f) provide as follows: | |
| “(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 grandparent 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.” | |
| The rebuttable presumption of 3104(f) appears to apply only if there is a parent who has been awarded sole legal and physical custody of the child or if there are no existing custody orders. What if, as in the vast majority of custody orders, the parents have been awarded joint legal and physical custody and the other parent does not object to the grandparents exercise of visitation rights? It appears that, in that situation, the court is to simply make a best interests determination without any deference to the objecting parent's opinion. | |
| Stepparents: California's stepparent visitation statute appears to fall under the broad shadow cast by the ruling in Troxel. Family Code §3101(a) provides that, “Notwithstanding any other provision of law, the court may grant reasonable visitation to a stepparent, if visitation by the stepparent is determined to be in the best interest of the minor child.” By simply petitioning for visitation rights, a stepparent can force the parent to defend him/herself in a hearing in which the only criteria is the best interests of the child. In order to comply with Troxel Family Code §3101 (a) will have to be amended to provide that there is a rebuttable presumption that stepparents visitation rights are not in the child's best interest. |
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Federal Courts H.C. v. KOPPEL |
| Holding: | The federal district court must abstain from intervening in an ongoing state child-custody proceedings by vacating existing orders and directing future course of litigation. |
| Facts: | In a bitter dissolution custody dispute in Los Angeles County Superior Court the child's parents, Los Angeles County Superior Court Judge Sandoz initially awarded custody to the mother, providing the father with limited supervised visitation. The first judge became ill and was replaced by the second judge, who awarded custody to the father because she found the mother to be a “flight risk.” The second judge also ordered that the mother was not to have any contact with the minor child. The mother's writ to the 2nd District Court of Appeal and petition to the California State Supreme Court were denied. The first judge returned to the case and gave the mother limited visitation rights. |
| The mother's next move was to complaint in federal district court against the Superior Court, Judge Koppel and the child's guardian ad litem. The defendants' motion to dismiss for lack of subject matter jurisdiction under Federal Rule of Civil Procedure 12(b)(1) was granted and the mother appealed to the 9th Circuit Court of Appeal. | |
| Trial Court Ruling: | See facts above. |
| Ruling on Appeal: | Affirmed. A federal court must abstain from interfering in a state court matter if the state proceedings are (1) ongoing, (2) implicate important state interests, and (3) provide the plaintiff an adequate opportunity to litigate federal claims. |
| Cross-reference: | Younger v. Harris, 401 U.S. 37 (1971) |
| California District Courts of Appeal In re Marriage of Congdon |
| Holding: | A request for a modification of time sharing schedule of a shared custody order requires showing of changed circumstances. |
| Facts: | In the dissolution trial, the parents were awarded joint legal and physical custody of the four minor children. The court order included a schedule under which the parents would alternate physical custody of two of the children on a weekly basis. Physical custody of the third child was to be equally divided during the week. The father was awarded primary physical custody of the fourth child. One and one-half years later the father sought a modification to have physical custody of all the children shared on an alternating week basis. |
| Trial Court Ruling: | The father's Order to Show Cause was denied on the basis that he had not substantiated a change of circumstances. |
| Ruling on Appeal: | Affirmed. Based, in part, on the father's acknowledgment that there had been no change of circumstances, the court held that the trial court was correct in refusing to modify the time sharing arrangement. The court disagreed with the 1st District Court of Appeal's holding in In re Marriage of Birnbaum which held that a change of circumstances is not necessary in order to obtain a modification of a timesharing schedule. The father, who was representing himself, was highly litigious and the Court of Appeal appears to have been eager to dispense with this case. |
| Cross-reference: | In re Marriage of Birnbaum (1989) 211 CA3 1508, 260 CR 210 |
| Comment: | Mr. Birnbaum petition to the California State Supreme Court was initially granted on May 26, 1999. However, the Court dismissed the petition on January 13, 2000, with a remand back to the 5th District Court of Appeal. The minutes of the Court for that date indicate that the case was apparently settled and the father filed a “Request to Dismiss Petition for Review Pursuant to Voluntary Settlement.” |
| With the dismissal of the appeal, Birnbaum remains the sole authority on the subject of the modification of time sharing schedules. Even though it has been depublished, Congdon has been summarized here because it appears that the validity of Birnbaum is now suspect, at least in the 5th Judicial District. | |
| In its review of the now unpublished decision, CLFR suggests that the mere change of the children's ages between the date of the initial order and the father's request was a sufficient change of circumstances. Unfortunately, the father did not assert it as a basis for his modification request. CFLR further opines that Birnbaum was the better of the two opinions. 1999 CFLR 8163. |
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Guardianship of Z.C.W.
(1999) 71CA4 524, 84 CR2 48 1st District Court of Appeal |
| Holding: | A lesbian partner does not have standing to obtain guardianship of her partner's children. |
| Facts: | Kathleen C. resided with her lesbian partner, Lisa W, who had a child from a prior relationship. The parties agreed that Lisa would be artificially inseminated, which resulted in a birth of a child. After the parties separated they agreed in writing that Kathleen would have specified visitation rights. Four years later Lisa terminated the agreement. Over the next two years, Kathleen attempted to maintain contact with the children. When Lisa discovered that Kathleen has visited the younger child, she obtained an order restraining Kathleen from having any contact with the children. Kathleen responded by filing a guardianship petition. |
| Trial Court Ruling: | Denied. |
| Ruling on Appeal: | Affirmed. Citing prior decisions, the court held that a non-parent in a homosexual relationship does not have the standing to obtain guardian ship of the partner's children. In addition, Kathleen failed to show that the children would suffer detriment if her petition was not granted. Finally, the court held that Kathleen was not entitled to visitation rights as the “de facto” parent of the children, which is a concept that is applicable to decency proceedings. |
| Cross-reference: | Nancy S. v. Michle G. (1991) 228 CA3 831, 279 CR 212; Guardianship of Phillip B. II (1983) 139 CA3 407, 188 CR 781 |
| Comment: | A de facto parents bill was introduced in the State Senate in 1999. In its current form SB 1173 would create Family Code §3105 which would enable domestic partners, who became de factor parents, to seek custody and visitation with respect to the former partner's children. The statute would also give the court the power to order the de facto parent to pay guideline child support. |
| That bill appears to be in conflict with Troxel v. Granville, discussed above. Just as in the Washington statute that was the subject of Troxel, SB 1173 does not establish a rebuttable presumption that the custody should be awarded to the child's natural parent. Instead, the statute merely says that the court, should “. . . give strong consideration to the wishes of the custodial parent or legal guardian.” That does not appear to be the equivalent of a rebuttable presumption in favor of the natural parent. |
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Guardianship of Zachary H.
(1999) 73 CA4 51, 86 CR2 7 6th District Court of Appeal |
| Holding: | A four-year-old child's constitutional interest in remaining in a stable home with guardians overrides the biological father's statutory right to havecustody of the child. |
| Facts: | After learning that his girlfriend was pregnant, the father expressed his desire to raise the child as a family. The girlfriend, who did not want to keep the child, disappeared. The father spent the next several months trying to locate her. Nine days before the child was born the father filed a paternity action. When the child was born the mother put him up for adoption. The father delayed in pushing his paternity case, in which he was representing himself. In the adoption case, the court found that the father had delayed too long in asserting his rights and interest in being a father. |
| The father's paternity rights were terminated and the petition for adoption was granted. The father appealed and the District Court of Appeal reversed, holding that the father's delays were the result of his self-representation and did not reflect his intention not to assert paternity. On remand, the trial court reinstated the father's paternity rights, awarded limited visitation rights to the father and ordered the father and the mother to attend mediation. | |
| The mother filed her own petition for custody and the adoptive parents filed a guardianship action. All of the actions were combined in one trial, which took place on June 3, 1977. | |
| Trial Court Ruling: | The adoptive parents, with whom the child had resided since his birth, were awarded guardianship. The court found that it was in the child's best interests to remain with them and that it would be detrimental to remove the child from their care. |
| Ruling on Appeal: | Affirmed. The District Court of Appeal held that, even though the statute appears to mandate a return of the child to the father, that requirement is subject to the child's constitutional rights to a stable home. |
| Cross-reference: | Family Code §8804(c) |
| Adoption of Kelsey S. (1992) 1 C4 816, 4 CR 2 615; | |
| In re Bridget R. (1996) 41 CA4 1483, 49 CR2 507. | |
| Comment: | Family Code §8804(c) provides that “If a birth parent who did not place a child for adoption as specified in Section 8801.3 has refused to give the required consent, or a birth parent revokes consent as specified in Section 8814.5, the court shall order the child restored to the care and custody of the birth parent or parents.” |
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Hoversten v. Superior Court
(1999) 74 CA4 696, 88 CR2 197 |
| Holding: | The father, who was in state prison, was entitled to be present in court during hearings at which custody of the minor children was awarded to the mother and the father's requests for joint legal custody and visitation were denied.. |
| Facts: | After the father was found guilty of robbery and assault with a firearm, he was sentenced to serve 19 years in prison. After he was incarcerated in state prison, the trial court awarded custody of the minor children to the mother and, later, denied the father's motion to set aside the prior order. The father was not able to attend either hearing. |
| Trial Court Ruling: | The mother was awarded sole legal custody of the children. The father was not awarded any visitation rights. |
| Ruling on Appeal: | Reversed. The matter was remanded to the trial court for further proceedings consistent with the decision. Inmates have a right to reasonable visitation with their children. The father should have been afforded a reasonable opportunity to assert his visitation rights. While prisoners do not have an absolute right to appear in civil matters, courts should devise alternative means to secure prisoners "meaningful" access to the courts. At the very least, the trial court was required to have the custody/visitation dispute mediated. |
| Cross-reference: | In re Smith (1980) 112 CA3 956, 169 CR 564; Wantuch v. Davis (1995) 32 CA4 786, 39 CR2 47 |
| Comment: | The court in Wantuch listed several measures a trial court could employ to afford reasonable court access to courts, including deferral of the action until the prisoner is released, appointment of counsel for the prisoner , transfer of the prisoner to court and utilization of depositions in lieu of personal appearances |
| Holding: | The family court did not abuse its discretion in failing to follow the recommendations of and expert selected by parties to help resolve |
| their custody dispute. The court properly denied the maternal grandparents' request for visitation rights. | |
| Facts: | The parties agreed to jointly retain an expert to assist them in resolving their on-going disputes over custody and visitation of their son. The wife's parents were joined in the case and sought visitation rights with the child. Except for describing their close relationship with the child, the grandparents did not propose a specific visitation schedule for themselves. |
| The evaluator appears to have recommended that the parties continue their arrangement which involved exchanging the child almost daily. However, the evaluator conditioned that recommendation on the father living within a 30-minute driving radius from the mother's home. | |
| Trial Court Ruling: | The father, who was a firefighter, was to have the child during the four day period he is off work in every nine days. At all other times the child was to reside with the mother. |
| Ruling on Appeal: | Affirmed. Awarding visitation rights to the grandparents would unnecessarily confuse an already difficult custody conflict between the parents. There was no evidence that the grandparents would not be able to see the child during the mother's periods of physical custody. The trial court's custody order gave both parents significant time with the child and reduced the number of times the child was to be exchanged |
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Haywood v. Superior Court
(2000) 77 CA4 949, 92 CR2 182 2nd District Court of Appeal |
| Holding: | Trial court erred in conceding out-of-state jurisdiction to Michigan, contrary to terms of the former Uniform Child Custody Jurisdiction Act, where the child had lived in California since her birth. |
| Facts: | Ten days after the pregnant wife moved to California, the husband filed for divorce in Michigan. The husband requested custody of the child and an order that the wife be required to return to Michigan. The wife challenged the jurisdiction of the Michigan court and filed her own dissolution of marriage action in California. |
| Trial Court Ruling: | The initially ruled that Michigan court has jurisdiction because of the wife's “reprehensible conduct” in removing the child from that state. After the wife filed her appeal, the trial court reversed its ruling and held that it had jurisdiction over the issue of child custody. |
| Ruling on Appeal: | Even though the trial court had reversed itself, the District Court of Appeal said that the issue was not moot. Because both actions were commenced before the child was six months old, neither state qualified and the child's “home state.” California was found to have jurisdiction because the child had a significant connection with California and had none with Michigan. The wife's conduct should not be considered because she did not violate a court order when she left Michigan. |
| Cross-reference: | Family Code §3400, et seq. |
| Comment: | The former Uniform Child Custody Jurisdiction Act (“UCCJA”) has been replaced by the Uniform Child Custody Jurisdiction Enforcement Act (“UCCJEA”). Most of the provisions of the UCCJA have been incorporated into the UCCJEA. |