Lead Opinion
Opinion
Pursuant to Family Code section 3102,
We conclude section 3102 is constitutional even though it may allow for court-ordered grandparent visitation over the objection of two fit parents. Although the fundamental right of parents to make decisions regarding the care, custody, and control of their children requires the court to give the decisions of fit parents special weight, it does not necessarily preclude a court from ordering visitation over the parents’ objection.
We further conclude summary judgment was improper in this case because father’s motion was based solely on the asserted facts that he and his wife were fit parents who objected to court-ordered visitation. Those facts were not legally sufficient to carry father’s initial burden of showing that grandparents’ petition for visitation had no merit. Because father did not meet his initial burden of showing grandparents’ petition had no merit, the burden never shifted to grandparents to show a triable issue of fact. Accordingly, we reverse the judgment.
Factual and Procedural Background
Andrew and Benjamin Sherriff are the natural children of Robert and Kathryn Sherriff. The Fenns are the children’s maternal grandparents.
Kathryn Sherriff died in August 2000 while she and father were in the process of getting divorced. Two months later, grandparents filed a petition for visitation under section 3102, alleging father was denying them visitation with the children. The parties agreed to undergo psychological evaluations and to allow grandparents supervised visitation with the children during the evaluation period.
In August 2001, after the case was transferred from Shasta County to Yolo County, father filed his response to the petition, alleging he had allowed grandparents to visit with the children at his discretion, in accordance with the recommendation of the children’s counselors. He also alleged section 3102 was unconstitutional and that grandparents were unfit to have visitation with the children.
In September 2001, father remarried. In November 2001, grandparents caused an order to show cause to issue, seeking
In February 2002, father moved for summary judgment on the ground he and his wife, who were both fit parents, opposed court-ordered visitation. Father argued section 3104, which was enacted after section 3102, takes precedence over section 3102, and section 3104 does not allow visitation over the objection of both parents. He also argued section 3102 was unconstitutional as applied if interpreted to allow grandparent visitation after an adoption. Finally, he argued that “for a grandparent visitation petition to succeed over the objections of both parents, both parents would have to be unfit,” and he and his wife were both fit parents.
In opposition, grandparents argued section 3104 did not supercede section 3102, section 3102 is constitutional, and there was a genuine issue of material fact regarding father’s fitness as a parent.
The trial court granted summary judgment in favor of father because grandparents had failed to allege in their petition that father was an unfit parent and because, even if unfitness had been alleged, grandparents had failed to raise a triable issue that father was unfit.
Discussion
I
Standard of Review
A defendant may move for summary judgment “if it is contended that the action has no merit. . . .” (Code Civ. Proc., § 437c, subd. (a).) “A defendant.. . has met his or her burden of showing that a cause of action has no merit if that party has shown that one or more elements of the cause of action, even if not separately pleaded, cannot be established, or that there is a complete defense to that cause of action. Once the defendant. . . has met that burden, the burden shifts to the plaintiff... to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto.” (Id., subd. (p)(2).) “The motion for summary judgment shall be granted if all the papers submitted show that there is no triable issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (Id., subd. (c).)
“Because the trial court’s determination [on a motion for summary judgment] is one of law based upon the papers submitted, the appellate court must make its own independent determination regarding the construction and effect of the supporting and opposing papers. We apply the same three-step analysis required of the trial court. We begin by identifying the issues framed by the pleadings since it is these allegations to which the motion must respond. We then determine whether the moving party’s showing has established facts which justify a judgment in movant’s favor. When a summary judgment motion prima facie justifies a judgment, the final step is to determine whether the opposition demonstrates the existence of a triable, material factual issue.” (Hernandez v. Modesto Portuguese Pentecost Assn. (1995)
“The affidavits of the moving party should be strictly construed, and those of the opponent liberally construed. [Citation.] Any doubts as to the propriety of granting the motion should be resolved in favor of the party opposing the motion.” (Molko v. Holy Spirit Assn. (1988)
Grandparent Visitation After a Stepparent Adoption
Father sought summary judgment on the ground that he and his wife, who has adopted the children as her own, are both fit parents who oppose court-ordered visitation between the children and grandparents. Father contends the courts have no power “to award grandparent visitation over the objection of both parents living together in a family unit.” For the reasons that follow, we disagree.
A
Statutory Analysis of Section 3102 and Section 3104
Sections 3102, 3103, and 3104 are the three statutes in the Family Code that specifically provide for grandparent visitation, each addressing different situations. Section 3102 allows grandparents (and certain other relatives) to seek visitation with their grandchildren when one of the children’s parents is deceased. Section 3103 allows grandparents to seek visitation with their grandchildren in a pending dissolution proceeding or other family law proceeding in which custody of the children is already at issue. Section 3104 allows grandparents to seek visitation with their grandchildren in other circumstances.
Here, grandparents sought visitation under section 3102, which on its face allows the court to order grandparent visitation when one of the parents is deceased “upon a finding that the visitation would be in the best interest of the minor child.” (§ 3102, subd. (a).) Subdivision (c) of the statute specifically addresses what happens when an adoption occurs following the parent’s death: “This section does not apply if the child has been adopted by a person other than a stepparent or grandparent of the child. Any visitation rights granted pursuant to this section before the adoption of the child automatically terminate if the child is adopted by a person other than a stepparent or grandparent of the child.” Thus, under the plain language of section 3102, a stepparent adoption (like the one that occurred in this case) has no effect on the grandparents’ right to seek court-ordered visitation with their grandchildren under that statute.
Father contends, however, that section 3102 must be read together and harmonized with section 3104, which compels a different conclusion. Under section 3104, “while the natural or adoptive parents are married,” a grandparent can seek court-ordered visitation only if: (1) “[t]he parents are currently living separately and apart on a permanent or indefinite basis”; (2) “[o]ne of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse”; (3) “[o]ne of the parents joins in the petition with the grandparents”; or (4) “[t]he child is not residing with either parent.” (§ 3104, subd. (b).) In addition, “[a]t any time that a change of circumstances occurs such that none of these circumstances exist, the parent or parents may move the court to terminate grand-parental visitation and the court shall grant the termination.” (Ibid.) In Lopez v. Martinez (2000)
According to father, “Section 3104(b) preempted the field of grandparent visitation when both parents are married” and therefore the limitations set forth in section 3104 apply even when the grandparents seek visitation under section 3102 following their child’s death. We disagree.
As we have already noted, by its terms section 3102 excepts from its application any case in which “the child has been adopted by a person other than a stepparent or grandparent of the child.” (§ 3102, subd. (c), italics added.) The plain import of this language is that a court may order grandparent visitation under section 3102 following the death of a parent even when a stepparent adoption has occurred.
Section 3104 addresses an entirely different situation than section 3102 and contains its own exceptions. Under section 3104, the court may order grandparent visitation when both parents are living (unlike § 3102), and when no custody proceeding is pending (unlike § 3103).
There is nothing in section 3104 to suggest the Legislature intended the limitations set forth in subdivision (b) of that statute to apply to petitions for visitation under section 3102. On the contrary, by the plain terms of section 3104, the limitations described in subdivision (b) of the statute apply only to “[a] petition for visitation under this section.” (§ 3104, subd. (b), italics added.)
The legislative history of section 3104 confirms that its enactment was not intended to affect or limit the right to seek visitation conferred by section 3102. At the time section 3104 was proposed, the Legislature recognized the existence of section 3102 and understood that a petition for visitation under that statute could be filed even when there had been a stepparent adoption. An early analysis of the bill proposing section 3104’s enactment specifically noted that under existing law, “if the grandparents’ adult child dies and leaves a minor child, the grandparents can request that they be allowed to visit with the child. This section is not applicable if [the] unmarried
It appears from both the language of section 3104 and its legislative history that the Legislature did not intend the limitations set forth in section 3104 to apply when the grandparents seek visitation under section 3102. It follows, therefore, that father’s statutory argument is only partly correct: courts have no power “to award grandparent visitation over the objection of both parents living together in a family unit” under section 3104. The Legislature imposed no such limitation on a petition for visitation under section 3102, when one of the natural parents is deceased.
Father’s reliance on the decision in Lopez v. Martinez, to support his argument that the limitations in subdivision (b) of section 3104 apply to a petition for grandparent visitation under section 3102 is misplaced. Lopez involved a petition for grandparent visitation under section 3104, and at no point in the opinion did the appellate court discuss or even mention the application of section 3102. “An opinion is not authority for a proposition not considered.” (City and County of San Francisco v. Sainez (2000)
B
Constitutional Analysis
Father contends that if section 3102 is applied to allow court-ordered grandparent visitation over his and his wife’s objections, the statute “infringes upon their constitutional right to raise and nurture their children without undue interference by the state.” On the record now before us, we disagree.
1. Federal Due Process
Under the due process clause of the Fourteenth Amendment to the United States Constitution, parents have a fundamental right to make decisions concerning the care, custody, and control of their children. (Troxel v. Granville (2000)
Following Troxel, at least four California appellate opinions have found section 3102 unconstitutional as applied to the specific facts before the courts in those cases. (Zasueta v. Zasueta (2002)
We turn now to the application of Troxel and its progeny to the facts of the present case. Here, father sought summary judgment on grandparents’ petition for grandparent visitation based on a very narrow set of facts he claimed were undisputed. In essence, father asserted in his separate statement of undisputed facts that he was entitled to summary judgment because: (1) he and his wife are married; (2) his wife has adopted the children; (3) both he and his wife oppose court-ordered visitation with plaintiffs; and (4) he and his wife are fit parents.
For father to prevail on his argument that he was entitled to summary judgment because section 3102 is unconstitutional as applied, we must be able to conclude that any grandparent visitation ordered by the court under the facts father presented in
In Troxel, the plurality opinion of Justice O’Connor explained that a parent’s fitness does not insulate the parent’s decisions concerning his or her children from state intervention. The fitness or unfitness of a parent is important because “there is a presumption that fit parents act in the best interests of their children.” (Troxel, supra,
Giving the parent’s determination “special weight” is different than insulating the parent’s determination from any court intervention whatsoever. Troxel does not support defendant’s suggestion that a fit parent’s decisions are immune from judicial review. Nor can we discern any basis in the law for reaching a different conclusion when there are two parents rather than one. The decision of father and his wife about whether and under what conditions grandparents should have visitation with their grandchildren is entitled to “special weight” under Troxel—assuming both are fit parents— but no more.
Although father has not specifically requested that we consider any evidence beyond that cited in his separate statement of undisputed facts, we recognize there was undisputed evidence submitted in connection with the summary judgment motion showing that father and his wife had been allowing the grandparents some visitation with the children.
The existence of the foregoing evidence—and the fact that the United States Supreme Court’s decision in Troxel rested at least in part on the fact that the parent opposing the visitation petition in that case had not cut off visitation entirely—raises the question of whether we should look beyond the separate statement of facts filed by father in determining whether summary judgment was proper in this case on federal constitutional grounds. For the reasons that follow, we decline to do so.
There is much authority for the proposition that all facts on which a moving party relies in seeking summary judgment must be included in the mandatory separate statement of undisputed facts filed in support of the motion. The summary judgment statute itself provides that “[t]he supporting papers shall include a separate statement setting forth plainly and concisely all material facts which the moving party contends are undisputed. . . . The failure to comply with this requirement of a separate statement may in the court’s discretion constitute a sufficient ground for denial of the motion.” (Code Civ. Proc., § 437c, subd. (b), italics added.) As for case law, this court has explained that “[wjhen a party applies for summary judgment, it must present a statement of undisputed facts specifying each fact necessary for the relief it seeks.” (City of South Pasadena v. Department of Transportation (1994)
Recently, Division Three of the Court of Appeal, Fourth Appellate District held that the “Golden Rule” from United Community Church cannot be deemed an “absolute prohibition against consideration of. . . evidence” not referenced in the separate statement. (San Diego Watercrafts, Inc. v. Wells Fargo Bank (2002)
Here, it appears from the record that in granting summary judgment to father the trial court neither exercised nor declined to exercise its discretion to consider evidence not referenced in father’s separate statement. This is so because the court found the evidence that father and his wife were fit parents, which was referenced in father’s separate statement, sufficient to require judgment in their favor. Because the trial court was never called upon to look beyond father’s separate statement, we are not called upon to determine whether the trial court abused its discretion in this regard. Nevertheless, because an appellate court reviews a trial court’s decision on summary judgment de novo (Merrill v. Navegar, Inc. (2001)
The court in San Diego Watercrafts, Inc., suggested factors that should be considered in deciding whether to look beyond the moving party’s statement of undisputed facts. Where the facts before the court are “relatively simple,” the evidence that compels affirming the summary judgment was “clearly called to the attention of court and counsel,” and the moving party’s entitlement to judgment in its favor is “obvious to the court and to the [opposing] party,” it would be an abuse of discretion to reverse a summary judgment “because of a mere procedural failure” by the moving party in failing to include the dispositive fact in its separate statement. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, supra,
Under the circumstances of this case, we conclude the relevant factors weigh in favor of declining to exercise our discretion to look beyond father’s separate statement of facts in determining whether summary judgment was proper. First and foremost, father did not ask the trial court to look beyond his separate statement, and he has not asked this court to do so. In fact, father expressly seeks to have the summary judgment affirmed regardless of whether he and his wife are allowing grandparents to visit with the children.
Despite his assertion in his declaration that he and his wife were providing “reasonable visitation” to grandparents, father never attempted to rely on that fact to support his motion for summary judgment in the trial court. Instead, father sought summary judgment based solely on the
Father takes the same position in this court. Although the factual summary in father’s brief refers in passing to the fact that he and his wife had been providing some visitation to grandparents, nowhere in his brief does father request that we consider this voluntary allowance of visitation in determining whether to affirm the summary judgment in his favor. On the contrary, father specifically contends “it [is] not necessary for a fit parent to provide any visitation to a grandparent in order to defeat a petition for grandparent visitation rights.” (Italics added.) Further, in the conclusion to his brief, father specifically asks us to find that he and his wife “have the right to deny [grandparents] visitation with [the] children.” Thus, it is quite apparent father does not want us to affirm summary judgment in his favor based on the fact, unreferenced in his separate statement, that he and his wife were voluntarily providing some visitation.
Under these circumstances, it seems that father’s omission of the allowance of some visitation from his separate statement of facts was not “a mere procedural failure.” (San Diego Watercrafts, Inc. v. Wells Fargo Bank, supra,
Another reason for not looking beyond father’s separate statement is that the facts here are not “relatively simple” and father’s entitlement to judgment in his favor is far from “obvious,” even if we were to take into account the fact that he and his wife have voluntarily provided some visitation to grandparents. (San Diego Watercrafts, Inc. v. Wells Fargo Bank, supra,
In Troxel, the evidence showed that the mother believed “ ‘grandparent visitation [wa]s in the best interest of the children,’ ” and she wanted grandparents to have “one day of visitation per month (with no overnight stay) and participation in [the mother’s] family’s holiday celebrations.” (Troxel, supra,
In Kyle O., the evidence showed that the father “agreed the grandparents needed to be involved in [the child’s] life” and “thought the grandparents should be able to see [the child] in the same fashion that his family saw her, which depended upon his and [the child’s] schedule.” (Kyle O. v. Donald R., supra,
In Punsly, the evidence showed that the mother, who lived in San Diego, had offered the grandparents, who lived in Los Angeles, visits with the child in San Diego once every three months on Sundays, along with telephone calls, in order “to minimize the long drives to Los Angeles and to require more of an effort by the [grandparents] to visit [the child] in San Diego.” (Punsly v. Ho, supra, 87 Cal.App.4th. at p. 1108.) In finding the visitation order (which provided for visits once every other month) unconstitutional, the court relied in part on the mother’s “willingness to voluntarily schedule visitation.” (Id. at pp. 1102, 1110.)
We do not discern from these opinions that the voluntary provision of some visitation by a fit parent, however small and under whatever conditions, necessarily renders any court-ordered visitation unconstitutional. Rather, in the words of the Troxel plurality, an offer of “meaningful visitation” to the grandparents is entitled to “significant weight” in determining whether intervention by the court would be constitutional. (Troxel, supra,
On the record before us, which we must view in the light most favorable to grandparents, it is far from obvious that father has offered them “meaningful” visitation with the children by allowing them one-hour supervised visits on an average of once every two and one-half months, which cost them approximately $5.78 per minute and during which they are prohibited from giving the children any gifts, from taking photographs or videotapes of themselves with the children, and from talking to the children about their mother. Moreover, in contrast to the parents in Troxel and Kyle O., it appears father does not believe visitation, at least with grandfather, is in the children’s best interests and does not agree grandfather needs to be involved in the children’s lives. On the contrary, he specifically stated in his declaration in support of the summary judgment motion: “I do not believe contact with [grandfather] is good for our two children.”
We need not decide, however, what bearing these facts might have on the summary judgment in father’s favor. For our purposes, it is sufficient to conclude that the facts regarding father’s voluntary provision of some visitation which he chose to omit from his separate statement are not “relatively simple,” and father’s entitlement to judgment in his favor is far from “obvious” based on those facts. Taken together with the inescapable conclusion
Accordingly, we limit ourselves to the question we framed above: Does the fundamental due process right of parents to make decisions concerning the care, custody, and control of their children preclude the state from ever ordering grandparent visitation over the objection of two fit parents? As we have explained, the answer to that question is “no.” The decision of fit parents regarding grandparent visitation is entitled to special weight, but not necessarily immunity from judicial review. It follows, therefore, that the facts presented by father in support of his summary judgment motion, even if undisputed,
2. State Parenting Right
Father contends “[a] parent’s fundamental liberty interest to raise his or her children without undue state interference is also protected by article 1 [sic], section 1 of the California Constitution.” Accordingly, we must analyze father’s constitutional argument -under the state Constitution as well.
Article I, section 1 of the California Constitution provides: “All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy.” It has long been held in California, although not necessarily with specific reference to this constitutional provision, that parents have a fundamental right to the care, custody, and control of their children. Our Supreme Court has explained that “the interest of a parent in the companionship, care, custody, and management of his children is a compelling one, ranked among the most basic of civil rights.” (In re B. G. (1974)
With these principles in mind, the question we address under the state Constitution is the same one we addressed under the federal due process clause: Does the fundamental right of parents to make decisions concerning the care, custody, and control of their children preclude the state from ever ordering grandparent visitation over the objection of two fit parents? Again, we conclude the answer is “no.”
As we have explained, the right of parents to the care, custody, and control of their children is not absolute, and this is true even when the parents are deemed fit. Under California law, a finding of parental unfitness is not necessary for a court to award custody of a child to a nonparent against the claim of a parent. (In re B. G., supra, 11 Cal.3d at pp. 698-699.) Instead, a court can award custody to a third party based on “a clear showing that such award is essential to avert harm to the child.” (Id. at p. 699.)
If a court can deprive fit parents of the custody of their children without violating the parents’ fundamental right to the care, custody, and control of their children, then certainly a court can order grandparent visitation—a much more limited form of interference with the parents’ custodial rights—without necessarily causing such a violation.
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.” (In re Marriage of Gayden (1991)
3. Equal Protection
One further constitutional argument remains to be addressed. As we have previously explained, if: (1) a stepparent adoption occurs; (2) the natural parent, stepparent, and child are living together; and (3) both parents object to court-ordered visitation, no petition for grandparent visitation is permitted under section 3104. Under section 3102, on the other hand, if one of the natural parents is deceased, a grandparent visitation petition may be filed notwithstanding a stepparent
Father contends this distinction between section 3102 and section 3104 violates the equal protection clauses of the United States and California Constitutions. He hypothesizes that if Kathryn Sherriff were only missing, instead of deceased, her parents would have no right to petition for visitation with the children, and “[t]here is no reason to afford greater grandparent visitation rights to the parents of a deceased child as opposed to parents of a missing child.” For the reasons that follow, we disagree.
“The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment.” (Purdy & Fitzpatrick v. State of California (1969)
Of course, “[t]here is always some difference between the two groups which a law treats in an unequal manner since an equal protection claim necessarily asserts that the law in some way distinguishes between the two groups. Thus, an equal protection claim cannot be resolved by simply observing that the members of group A have distinguishing characteristic X while the members of group B lack this characteristic. The ‘similarly situated’ prerequisite simply means that an equal protection claim cannot succeed, and does not require further analysis, unless there is some showing that the two groups are sufficiently similar with respect to the purpose of the law in question that some level of scrutiny is required in order to determine whether the distinction is justified.” (People v. Nguyen (1997)
Here, father’s equal protection argument posits the existence of two similarly situated groups—(1) natural parent/stepparent families where the other natural parent is deceased; and (2) natural parent/stepparent families where the other natural parent is missing. It is important to note, however, that a stepparent adoption cannot occur simply because one of the natural parents is “missing.” Generally, the consent of a living natural parent is required for an adoption unless the natural parent has deserted the child, had his or her parental rights terminated, surrendered those rights, or relinquished the child for adoption. (See §§ 8604-8606.) Thus, for purposes of father’s equal protection argument, the two groups subject to unequal treatment under sections 3102 and 3104 are more accurately described as: (1) natural parent/stepparent families where the other natural parent is deceased; and (2) natural parent/stepparent families where the other natural parent is alive, but has surrendered, lost, or forfeited his or her parental rights.
“The next step in analyzing an equal protection challenge is a determination of the appropriate standard of review.” (People v. Nguyen, supra,
Father suggests we should apply the strict scrutiny test here because the challenged classification involves “matters concerning the fundamental right of parents to direct the upbringing of their children.” Not every classification involving a fundamental right warrants strict scrutiny, however.
“Although a fundamental interest may be involved, both the United States Supreme Court and [the California Supreme Court] have recognized that not every limitation or incidental burden on a fundamental right is subject to the strict scrutiny standard. When the regulation merely has an incidental effect on exercise of protected rights, strict scrutiny is not applied. [Citations.] It is only when there exists a real and appreciable impact on, or a significant interference with the exercise of the fundamental right that the strict scrutiny doctrine will be applied.” (Fair Political Practices Com. v. Superior Court (1979)
We conclude the classification father challenges does -not warrant strict scrutiny. In essence, father complains that because the other natural parent of his children is deceased, rather than simply missing, he and his wife are subject to a petition for grandparent visitation under section 3102. The mere fact that defendant and his wife are subject to a visitation petition, however, is not “a real and appreciable impact on, or a significant interference with the exercise of’ their fundamental right to make parenting decisions. (Fair Political Practices Com. v. Superior Court, supra,
We therefore apply the rational relationship test to father’s equal protection challenge. Under that test, father bears the burden of demonstrating that the challenged classification is invalid because the classification bears no rational relationship to a conceivable legitimate state purpose. (D’Amico v. Board of Medical Examiners (1974)
Father contends “[t]here is no basis,” rational or otherwise, for allowing “an adopting stepparent full rights to control visitation if the natural parent is missing, but not if the natural parent is deceased.” We disagree.
As we have explained, the classification the Legislature created in section 3102 and section 3104 distinguishes between natural parent/stepparent families where the other natural parent is deceased, and natural parent/stepparent families where the other natural parent is alive, but has surrendered, lost, or forfeited his or her parental rights. We perceive a rational basis for this distinction. When a child is deprived of a natural parent by that parent’s death, the parent’s family may be the only means of maintaining the child’s link with his or her paternal or maternal family, including their ancestry, heritage, culture, traditions, and medical history. The Legislature reasonably could have determined that in such circumstances, members of the deceased parent’s family should have the opportunity to demonstrate to a court that visitation with the child will further this legitimate state interest. That is exactly the opportunity that section 3102 provides by allowing “the children, siblings, parents, and grandparents of the deceased parent” to petition for visitation rights. (§ 3102, subd. (a).)
On the other hand, when the natural parent is alive, but has surrendered, lost, or forfeited his or her parental rights, the interest in maintaining the child’s connection to his or her extended paternal or maternal family is not so compelling. The Legislature reasonably could have determined that when a living parent no longer has any parental rights, and a new nuclear family has been created by a stepparent adoption, the importance of “honoring] the integrity of the nuclear family unit and the ability of married, cohabiting parents to make decisions free from state interference” (Lopez v. Martinez, supra,
Because we find a rational basis for the classification father challenges, we reject father’s equal protection argument.
III
Sufficiency of the Petition
Working from the trial court’s ruling in this case—that grandparents failed to plead father’s unfitness as a parent in their petition—father contends summary judgment was proper because grandparents’ petition “did not allege that [father] was unfit, the children would suffer any harm from the denial of visitation, nor
“[W]here the defendant asserts a failure of the complaint to state a cause of action, the summary [judgment] motion is tantamount to a motion for judgment on the pleadings.” (Sequoia Ins. Co. v. Superior Court (1993)
The petition here alleged that grandparents are the maternal grandparents of the minor children; that the children’s mother is deceased; that father had left the area and taken the children with him; that grandparents had not been allowed to see the children since their daughter’s death; and that grandparents “have a warm and caring relationship with the children which has always bordered on a parent/child relationship, and it is in the best interests of the children that this relationship continue.”
These allegations were sufficient to state a cause of action for grandparent visitation under section 3102 on its face. In relevant part, the statute provides that “[i]f either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the child’s minority upon a finding that the visitation would be in the best interest of the minor child.” (§ 3102, subd. (a).) Grandparents alleged all that was required by the statutory language to establish a claim for grandparent visitation rights under section 3102.
Father contends, however, that because Troxel establishes “the presumption that a fit parent acts in the best interests of his children with respect to grandparent visitation,” it was incumbent on grandparents to plead more than what the face of the statute required—either that father was an unfit parent or some other “special factors or harm that will accrue to the children in the absence of grandparent visitation.”
It is true, as we have explained, that a fit parent’s parental decisions are entitled to “special weight” under Troxel in deciding a petition for grandparent visitation. Nothing, however, requires grandparents seeking visitation rights to plead the parent’s fitness or unfitness, or any other “special factor” justifying a visitation order. The only legal principle cited by father, and relied upon by the trial court, to impose this pleading requirement on grandparents was the rule that “a party cannot successfully resist summary judgment on a theory which was not pleaded in the complaint.” (Hobson v. Raychem Corp. (1999)
Grandparents did not seek to resist father’s summary judgment motion on a theory different from the one they pled in their complaint. They sought court-ordered visitation with their grandchildren under section 3102, and father moved for summary judgment on the ground that they were not entitled to any such visitation over the objections of father and his wife. As the moving party, father bore the burden of presenting the court with sufficient facts to justify the relief he sought, and he attempted to meet this
“A cardinal rule of pleading is that only the ultimate facts need be alleged.” (Ludgate Ins. Co. v. Lockheed Martin Corp. (2000)
Here, grandparents’ petition provided father with sufficient facts to acquaint him with the nature, source, and extent of their cause of action for grandparent visitation under section 3102. Because parental unfitness is not an element of a cause of action under section 3102 (although it may affect the court’s analysis in determining the petition), grandparents were not required to plead that father and his wife were unfit parents. Liberally construed, grandparents’ petition is sufficient to state a cause of action for grandparent visitation.
IV
Proof of Harm
Citing the rule applicable to awards of custody to nonparents (see In re B. G., supra, 11 Cal.3d at pp. 698-699), father “urges this court to adopt a standard that requires grandparents seeking visitation under Family Code [section] 3102 to plead and prove harm to the child in [the] absence of such grandparent visitation.” Father further contends that “grandparent petitioners should have to prove by clear and convincing evidence that the child will suffer harm or detriment absent grandparent visitation.” He concludes by arguing that “[u]nder this standard, [grandparents’] pleadings and evidence included in their Separate Statement of Undisputed Material Facts fail to support a cause of action.”
Father’s argument is premised on a misunderstanding of summary judgment law. On review of a summary judgment, before we ever look at whether the opposing party demonstrated the existence of a triable, material factual issue, we must determine “whether the moving party’s showing has established facts which justify a judgment in movant’s favor.” (Hernandez v. Modesto Portuguese Pentecost Assn., supra,
V
Triable Issue as to Parental Fitness
Father’s final argument is that grandparents failed to raise a triable issue of fact as to the fitness of father and his wife as parents. As we have previously explained, however, we need not reach this issue because we conclude father never carried his initial burden of presenting the court with facts justifying a judgment in his favor. Because the only facts father offered in support of his motion —that he and his wife are fit parents who object to court-ordered visitation—are not sufficient to show grandparents’ petition for grandparent visitation has no merit, the burden never shifted to grandparents to raise a triable issue of fact. Thus, whether a triable issue exists regarding parental fitness is immaterial at this stage of the proceedings.
Disposition
The judgment is reversed. Plaintiffs shall recover their costs on appeal. (Cal. Rules of Court, rule 27(a).)
Raye, J., concurred.
Notes
“If either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the child’s minority upon a finding that the visitation would be in the best interest of the minor child.” (Fam. Code, § 3102, subd. (a).)
This provision was added to the predecessor of section 3102 (former Civ. Code, § 197.5) in 1970 (see Stats. 1970, ch. 1188, § 1, p. 2096), apparently in reaction to the decision a year earlier in Roquemore v. Roquemore (1969)
As one treatise has explained, “[s]ection 3104 closes a gap in prior law under which grandparents had no avenue to obtain court-granted visitation unless one of the parents had died or a marital action between the parents was before the court.” (Hogoboom & King, Cal. Practice Guide: Family Law (The Rutter Group 2002) ¶ 7:535, p. 7-175.)
Interestingly, section 3104, which was enacted long before the decision in Troxel (see Stats. 1993, ch. 832, § 2, pp. 4505-4506), contains a provision that appears to comply with the Supreme Court’s requirement that “special weight” be given to the decisions of fit parents. (See § 3104, subd. (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”].) No similar presumption is expressly required by section 3102; however, to comply with the constitutional requirements of Troxel, section 3102 must be read as though it contained a similar presumption.
Whether they continue to do so now is not within our knowledge.
It appears from other documents in the record that Carlson was the psychologist who conducted the psychological evaluations the parties agreed to at the outset of the case; Winslow was a therapeutic custody counselor whom father and the children’s natural mother (Kathryn Sherriff) had seen; and Powell was a psychiatrist who had treated both father and Kathryn.
Grandparents contend they presented sufficient evidence to raise a triable issue as to whether father is a fit parent. Because we conclude father never met his initial burden of showing grandparents’ petition was without merit, we do not reach the issue of whether grandparents’ evidence raised a triable issue of fact as to parental fitness.
Of course, whether grandparent visitation actually will be ordered in such a situation depends on the facts of the particular case, considered in light of the “special weight” that must be given to a fit parent’s decision regarding visitation.
As we have observed already, under the procedural posture of this case, we have no occasion to reach this issue.
Concurrence Opinion
I concur in the majority’s statutory analysis undertaken in part II.A. of the majority opinion.
With respect to the question whether father has shown that Family Code section 3102 cannot constitutionally be applied to him, I agree he has not, for the following reasons:
Father can defeat the grandparents’ claims to visitation by showing (1) he is a fit parent and (2) he is willing to provide meaningful visitation to the grandparents. (Troxel v. Granville (2000)
Respondent’s petition for review by the Supreme Court was denied October 15, 2003. Baxter, J., did not participate therein.