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
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.'
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
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