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GRANDPARENT RIGHTS: Recent RIVERSIDE Case Orders VISITATION To GP After DEATH OF PARENT

Hoag v. Diedjomahor (October 17, 2011), 200 Cal.App.4th 1008

The Facts

The Fourth Appellate Division released a published opinion on October 17, 2011 in the case of Hoag v. Diedjomahor, a case which was decided by recently retired Commissioner Michael McCoy in Indio, California, involving grandparent visitation rights upon the death of a parent per Family Code section 3102. Commissioner McCoy's ruling in favor of the grandmother was upheld on appeal. Interestingly, the grandmother did not participate in the appellate level proceedings but nonetheless succeeded. Overturning a well reasoned trial court decision, where an abuse of discretion must first be shown, is always a difficult proposition.

Melville Diedjomahor (the father) and Kristen Hoag (the mother) were married in 2005. They lived with Kristen's mother, Shannon Hoag (the grandmother) in an apartment in La Habra. Kristen gave birth to their first daughter in 2006. Thereafter the parties separated. Melville moved to Desert Hot Springs, California, while Kristen and the minor remained with the maternal grandmother. Then the parties reconciled, and the family - including Shannon Hoag - moved into a residence together in DHS. In 2008 a second daughter was born.

Kristen filed for divorce in Indio in February, 2009. A month later she died unexpectedly as a result of previously undiagnosed epilepsy. Immediately following the death the children remained with the grandmother, and the father would come visit every few days.

Several months later the grandmother told the father she intended to file a guardianship proceeding. In reaction thereto, Melville demanded that she turn the children over to him. The proceeding was filed, alleging that the father was unfit because of injuries and also because he was in the country illegally and subject to deportation. Communications between the two rapidly deteriorated such that - according to grandma, he refused to give her any further visitation except that which was court-ordered; the father denied imposing this limitation to the trial court. In any event the GM was denied access to the children for some weeks after she filed her guardianship petition, until Commissioner McCoy entered visitation orders some three weeks later.

To complicate matters, grandmother was living together with Kristen's uncle, where the children and Kristen had also stayed for a time before her death, and - as we so regularly see if high conflict family law cases - father alleged that the uncle had improperly touched his niece, Kristen, years before when she was a minor. In 1993 grandmother's children had been removed from her custody because she had been using drugs. For these reasons grandmother should not have extended visitations, he argued.

Nonetheless, grandmother received visitation with the minors pending a trial. The guardianship proceedings were dismissed and continued within the family law action that Kristen had initiated. This visitation gave the grandmother three hours every Wednesday and 48 hours every other weekend, and she was allowed a daily phone call. This became her proposal for the final visitation order. It was based upon the mediator's recommendations.

Melville claimed at trial that he would permit grandmother to visit, but objected to any orders issuing for same and instead insisted it should be left to his discretion for day to day and moment to moment. He contended that overnights were not safe because the children might be exposed to the uncle (by this time the grandmother had moved into an apartment by herself, in the same complex as dad), that he wanted to study the kids on Wednesday, and he objected to daily calls because they interrupted what he was doing. He explained that once grandmother had filed court proceedings she had breached any trust that had previously existed between them. Hence, his final non-court order proposal was eight hours every other Saturday and one week during the summer with no sleep overs, and eight hours on grandmother's birthday.

Commissioner McCoy found that while the father was in fact a fit parent, he had opposed grandmother's requests for what was a reasonable visitation schedule. The Court found that the father's testimony that he would allow non-court ordered visitation to occur not to be credible, and also dismissed the allegations regarding the uncle (McCoy had prohibited such contact in any event) and the grandmother's past conduct. It found that visitation was in the children's best interest, particularly given the years that grandmother had acted as a third parent. The trial court ruled that a parent does not have unfettered discretion to impose visitation conditions at his whim where grandparents have played such an important historic role for children.

The Law Concerning Grandparent Visitation

This decision does an excellent job in reviewing and cleaning up California decisions about grandparent visitation in the wake of Troxel v. Granville (2000) 530 U.S. 57, decided by the United States Supreme Court almost twelve years ago. Like Troxel, this case involves a grandparent whose adult child has died, seeking visitation with that child's minor children over the objection of a surviving parent.

As noted by Justice Richli, who wrote the opinion for our local Riverside County based appellate division, Troxel commands the courts to presume that the surviving parent's objection to grandparent visitation is in the best interest of the children. "However, this does not mean that the surviving parent is free to use the denial of visitation as Big Bertha in his or her personal war with the grandparent." Here, the trial court found that the surviving parent's claimed reasons for objecting to visitation were not reasonable and not credible; in essence, as he practically admitted on the stand, he objected to visitation mainly to spite the grandparent. Moreover, he admitted that grandparent visitation would be in the best interest of the children. Thus, the presumption that he was acting in the best interest of his children was overcome, and the trial court constitutionally could and did grant the grandparent's visitation petition.

The trial court understood the law to be that it could constitutionally apply section 3102, including its best-interest test, provided the father was either (1) unfit, or (2) "opposed to occasional visitation." It concluded that "the issue really turns on whether dad is opposed to occasional visitation. If he is, then the court then addresses what visitation, if any, is in the children's best interest." It found that the father was "opposed [to] any . . . reasonable visitation involving the children and grandma." Thus, it proceeded to apply a standard best-interest test.

The father urged that the trial court erred by finding that he was opposed to meaningful visitation. Second, even assuming that he was opposed to meaningful visitation, he was still entitled to a presumption that his decision was in the best interest of the children.

Justice Richli stated:

"In Troxel, the surviving parent's willingness to allow visitation was just one of a number of factors that the Supreme Court took into account. Thus, the significance of this single factor, standing alone, is not at all clear. We have no way of knowing what the outcome would have been if the surviving parent had not been willing to offer meaningful visitation.

* * *

In fact, Troxel's discussion of willingness to allow visitation puts the parent in a 'damned if you do, damned if you don't' position. If the parent voluntarily allows some visitation, that could be viewed as a concession that visitation is in the best interest of the child. Certainly it is a decision regarding the child's best interest, to which the court must ... accord 'special weight.' If, however, the parent refuses to allow any visitation voluntarily, that, too, weighs in favor of court-ordered visitation. What is a parent who genuinely believes that visitation would be detrimental supposed to do?

Because this issue is fraught with difficulty, we choose to assume - solely for the sake of argument - that the trial court erred by ruling that it was free to apply a best-interest test solely because the father was not willing to offer meaningful visitation voluntarily. This would mean that it was still required to presume that the father's visitation determination was in the best interest of the children and to accord special weight to that determination.

The trial court's other findings, however, show that, even if it had applied this standard, it would still have allowed visitation. Most crucially, it found that the father's claimed reasons for objecting to visitation were not reasonable and not credible. This left, as his real reason, a desire to retaliate against the grandmother for her attempt to take the children away from him. Indeed, he testified that he was contesting visitation because she had breached his trust by trying to take the children away from him, and she had been 'disrespectful' to him. We hasten to add that this is a completely understandable reaction. Nevertheless, it is not based on the best interest of the children. To the contrary, it punishes the children for the sins of the grandmother. [Emphasis added].

* * *

In this appeal, the father claims that it was reasonable for him to be opposed to court-ordered visitation, as opposed to voluntary visitation, because the grandmother had 'a pattern of hostility' toward him. He argues that, unlike voluntary visitation, court-ordered visitation would give her a stick to beat him with - any time he violated an order, she would undoubtedly seek sanctions against him.

The problem with this argument is that the father himself never testified, at trial, that this was why he opposed court-ordered visitation. Thus, the trial court did not have to accept this theory.

* * *

The father argues that ... the trial court could not order visitation unless and until he had been given an opportunity to negotiate visitation voluntarily.

He had such an opportunity, however, in the course of the guardianship, as well as in this action. He even participated in mediation (which regrettably produced no agreement).

According to the father, however, a grandparent must ask the surviving parent for a voluntary visitation arrangement before the grandparent can even file a visitation petition with the court. Thus, in his view, the fact that he had an opportunity to negotiate a voluntary visitation arrangement after this proceeding had already been filed is irrelevant. We find no authority for this in Troxel or Punsly. Indeed, Punsly is, if anything, to the contrary. It understood Troxel to mean that "the parent must be given an opportunity to voluntarily negotiate a visitation plan," but it added that it was "irrelevant" when or why the parent did so. [Citation omitted]. Moreover, it held that, in the case before it, this requirement had been satisfied by the parent's agreement 'to voluntarily arrange visitation . . . both before and after the [grandparents] petitioned the court for visitation.' (italics added.)

The father argues that it would be good public policy to make a request for voluntary visitation a precondition to filing a visitation petition. Even if so, this is an argument that must be made, if at all, to the Legislature. Section 3102 contains no such requirement, and the federal Constitution, as construed in Troxel, does not impose one."

Comments

Mike McCoy did an outstanding job in making a thorough and well-reasoned decision based upon the evidence. To resist visitation by a grandparent who has a close and substantial relationship with grandchildren, there needs to be real evidence in the record that the children's best interests in continuing, stable relationships with these third party nonparents, are not being ignored simply out of spite.

This case is a must read for all grandparents, or custodial parents, faced with a grandparent or other request for visitation rights by a non-parent. I will upload the opinion itself in a few weeks. It gives rich fodder for how to structure arguments on both sides in these often acrimonious, but always unfortunate, disputes.

However, as it turns out, this decision is not the final answer on the matter. I will discuss the more recent case of Rich v. Thatcher, out of Ventura County, shortly. But, this is not the Ventura "Thatchers", is it?

Please note that this decision is based upon Family Code section 3102, which only applies where one parent has died. The other grandparent visitation statutes are Family Code section 3103 and FC section 3104. I would suspect, however, that this case will nonetheless generalize, to an extent that remains to be seen, to grandparent visitation where both parents are still living.

Thurman Arnold, III, CFLS


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