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2nd Appellate District Severely Limits GRANDPARENT VISITATION Under Family Code Section 3102

Rich v. Thatcher (2011) 200 Cal.App.4th 1176

In what reads to me to be a myopic opinion, Justice Yegan of Division Six of the Second Appellate District has declared that biological grandparents have a burden to prove, by clear and convincing evidence, that denying them visitation pursuant to Family Code section 3102 would be detrimental to a child before they can hope to win access to the minor, when their own child dies, in the face of a "fit" parent's objection. Attaching a burden of proof by "clear and convincing" evidence is usually the kiss of death to any litigant who has that burden.

The appellate decision appears to combine a species of "bad facts make bad law" (or "bad acts"?) with a reluctance to discuss the underlying facts to such extent that we are left guessing where the grandmother went wrong, since clearly she made an extremely poor impression on the trial and appellate courts. Some important information in the record apparently is being withheld that might help explain this draconian outcome. This leaves me with the sense that both courts were being reactive to facts that aren't shared, but the result is that we have a new rule that will punitively impact many grandparents who are innocent of whatever transgression Ms. Rich may have committed.

Importantly, this decision reflects a collision between the "constitutional rights" of parents verse nonparents without regard to what the mental health and family sciences community might offer about taking a multi-generational approach to co-parenting. Apparently nobody weighed on behalf of the family science communities - no amicus curie briefs seem to have been sought or submitted. I hope that this decision gets appealed to the California Supreme Court so that it can begin to look at the very important role that grandparents potentially play within families. Unfortunately, grandparents don't seem to have much of an organizational voice.

The decision tells us that Carol Rich is the grandmother and that Rochelle Thatcher is the surviving parent ("Thatcher" is a big name in Ventura, but I don't know if there is any relation). Carol's son and Rochelle never married, but they produced a son together in December, 2006. The father died in 2010 of a drug overdose. Grandmother and mother did not "get along", and grandmother apparently accused mother of having something to do with her son's death. "Their hostility was open and clear." Two suicide notes were left but we aren't informed about what they said, if anything at all, about the mother or grandmother.

It seems as if grandmother had a very hard time accepting her son's death, and that she felt that the mother was in some way responsible. If so, grandmother's position may have reasonably led a trial court to conclude that she would be a destabilizing and even poisonous influence on the minor, but if that is how the justices felt it would be nice if they had said so. Instead they have spanked all grandparents with one flat judicial palm.

Grandmother did get a lengthy evidentiary hearing in June, 2010, when a number of witnesses were called. At the conclusion the trial court "expressed 'great concern over [grandmother's] veracity.'" It found that while grandmother had established some relationship with the child, she had failed to establish a "deep and abiding relationship." Grandmother had served as a visitation supervisor for her son. Hence, it sounds as if this grandmother's relationship historically had not been substantial. The child was 4 1/2 at the time of trial.

The trial court imposed a clear and convincing burden standard on grandmother to "rebut the presumption that Mother is acting in the best interest of [grandchild] in denying visitation to Grandmother at this time or that denial of visitation would be detrimental to [grandchild]." The trial court found in any event "it would not be in [grandchild's] best interest to interject court-ordered visitation with Grandmother, particularly in light of the longstanding animosity between Mother and Grandmother."

Hence, this ruling is another cautionary tale for grandparents - if you ally yourself too closely with you own child as against the person with whom they chose to produce a child, it may hurt you later.

Grandparents do too often tend to become enmeshed in their children's lives. This is often seen, for instance, in support cases where parents are paying all their adult children's expenses while those grown-up children refuse or fail to become financially independent. I hope we see a case soon where regular "gifts" from grandparents to their kids are treated as "income" for purposes of fixing support from the other party. But I digress.

Justice Yegan ruled as follows:

Grandmother contends that the trial court erred in applying the clear and convincing burden. We disagree with her and agree with the trial court's legal conclusion. We hold as follows: To overcome the presumption that a fit parent will act in the best interest of the grandchild, a grandparent has the burden of proof and must show, by clear and convincing evidence, that denial of visitation is not in the best interest of the grandchild, i.e., denial of visitation would be detrimental to the grandchild. The fair import of the word "detriment" is damage, harm, or loss.... If grandparent visitation is in the grandchild's 'best interest,' it is not 'detrimental.' If grandparent visitation is not in the grandchild's 'best interest,' it is 'detrimental.' [Citations omitted].
Until today, no appellate court has expressly held that section 3102 requires clear and convincing evidence to overcome the presumption. 'There is some authority for the proposition that the same test which applies to a custody award to a nonparent should apply to a visitation award to a nonparent that is, that "judicially compelled visitation against the wishes of both parents" "must not be allowed unless it is clearly and convincingly shown that denial of visitation would be detrimental to the child." [Citations omitted].
'The degree of burden of proof applied in a particular situation is an expression of the degree of confidence society wishes to require of the resolution of a question of fact. (Citation).' [Citations omitted]. There is no question that a grandparent has an important interest in visiting with a grandchild. But the higher degree of the burden of proof that we adopt simply demonstrates that there is a preference in favor of the presumably correct choice of a fit sole surviving parent. Such choice is 'first.'
... To adequately protect a fit sole surviving parent's constitutional right to raise a child, a 'mere preponderance' burden as to 'best interest' is not sufficient. The 'clear and convincing' burden, i.e. evidence 'so clear as to leave no substantial doubt,' promotes a parent's constitutionally protected "first" choice. The higher evidentiary burden preserves the constitutionality of section 3102 and insures against erroneous fact finding. (Id., at p. 248.)
The clear and convincing burden is not insurmountable. We can certainly envision a case where a trial court could factually find and rule that grandparent visitation is appropriate over the objection of the fit sole surviving parent....

So, we now have a rule that is intended to honor the constitutional issues addressed in the U.S. Supreme Court's Troxel decision. While "clear and convincing evidence" is not an "insurmountable burden," any lawyer will tell you that practically speaking it almost is. Moreover, while the decision admits that grandparents have important interests in visiting with grandchildren, it totally ignores the rights of children to know their families of origin. There is no mention that any lawyer was appointed for the minor in this case, so no one was arguing on behalf of the child for the child's well-being in that regard.

This decision should also be evaluated in light of a Fourth Appellate District decision issued less than a month ago. In Hoag v. Diedjomajor the Riverside based appellate district upheld a trial court order for grandparent visitation after a grandparent's child died. The burden of proof applied by the Court was not discussed, but was implicitly by a "preponderance of the evidence."

The co-parenting outcome inDiedjomajor was the opposite as that here, but in many ways it is consistent with Justice Yegan's decision - and here is what is interesting to me: If a parent refuses visitation to spite the grandparent, the parent loses. If the grandparent seeks visitation after spiting the non-biological surviving parent, the grandparent loses. Open hostility for hostility's sake may be the kiss of death for visitation requests the parent verses grandparent arena. Play nice!

Here is a separate question: How can a "fit" parent (by definition) deny any access at all between their child and that child's grandparents, especially when the intergenerational parent is dead, except under the most outrageous of circumstances? Perhaps if a grandparent does behave outrageously, then their rights should be limited or nonexistent. Oy vey, possibly the record that we will never see discloses that such was the case here. But I don't see how we need to impose a burden of proof by clear and convincing evidence to ensure that bad grandparents are fenced in - I mean "fenced out".

Another question bothers me - the decision points out that there were nine other witnesses who testified at the trial beyond the grandmother in this case. Did these include the maternal grandparents, who possibly were more favorably received? So often these types of litigation wars can only be funded by older people who have accumulated some wealth. Often these family battles include or are really between parents' parents. Is that what this case was really about?

Seems like the grandchild was the loser, as were an entire familial class of people - grandparents generally.

Thurman W. Arnold, III


(comment continued) Whether the CA Supreme Court wants to dive back into this issue remains to be seen.
The "preponderance of the evidence" standard is appropriate where primarily financial issues are at stake, not fundamental constitutional rights. (Grandparents have no constitutional right to override the decisions of fit custodial parents.) The Second District made the right call. As for whether a fit parent would limit or deny a grandparent access to a grandchild (either decision may be involved): grandparents come in all the variety of any other human being; and the reason can range from a grandparent's refusal to obey parental rules, to a state of denial about the grandparent's physical limitations or substance abuse problems, to a grandparent's persistent denigrating of members of the custodial family, to a history of emotional or physical or sexual abuse. An overworked trial judge is in a poor position to evaluate evidence of years of conflict and family history. Mr. Arnold is correct that there may be some inconsistency between this latest case and Hoag. A petition to transfer in Hoag is likely. Whet