In re the MARRIAGE OF Karen and Charles Erik HARRIS.
Karen Butler, Appellant,
v.
Charles Erik Harris et al., Respondents.
Supreme Court of California.
*844 Family Law Appellate Associates, Law Offices of Jeffrey W. Doeringer and Jeffrey W. Doeringer, Huntington Beach, for Appellant.
Karen A. Wyle; Julie E. Mumma, Sacramento; Guralnick & Gilliland, and Anne L. Rauch, San Diego, for the Coalition for Restoration of Parental Rights as Amicus Curiae on behalf of Appellant.
Martha Matthews, Mark D. Rosenbaum, Los Angeles; Charles A. Bird, San Diego, Jordan C. Budd; Joan H. Hollinger; Shannon Minter; and Shannan Wilber for ACLU Foundation of Southern California, ACLU Foundation of San Diego and Imperial Counties, Child Advocacy Program Law School Boalt Hall, National Center for Lesbian Rights and Youth Law Center as Amici Curiae on behalf of Appellant.
Law Office of Paul W. Leehey and Paul W. Leehey, Fallbrook, for Respondents.
William Wesley Patton for Whittier Law School Legal Policy Clinic as Amicus Curiae on behalf of Respondents.
David Borges; Law Offices of Gollub & Golsan, Lorraine Gollub; Cooper-Gordon, Freida Gordon; Dawn Gray, Grass Valley; *845 Stephen Temko; Woodruff, O'Hair & Posner and D. Thomas Woodruff for the Association of Certified Family Law Specialists as Amicus Curiae on behalf of Respondents.
Myron Dean Quon, Patricia M. Logue and Jon W. Davidson for Lambda Legal Defense and Education Fund, Inc., as Amicus Curiae on behalf of Respondents.
Lawrence E. Fluharty for the Los Angeles Chapter of the National Association of Counsel for Children as Amicus Curiae.
*843 MORENO, J.
The superior court granted extensive visitation rights to the paternal grandparents of a five-year-old girl with the approval of the father but over the objection of the mother, who has sole custody of the child. Applying the United States Supreme Court's decision in Troxel v. Granville (2000)
For the reasons that follow, we conclude that Family Code section 3104 controls in this case and that the statute is constitutional, both on its face and as applied. Because the mother had sole custody of the child and objected to grandparent visitation, Family Code section 3104, subdivision (f), imposed a rebuttable presumption affecting the burden of proof that grandparent visitation was not in the child's best interest. The superior court did not utilize this presumption. Accordingly, we remand the case to permit the superior court to reconsider its order permitting grandparent visitation in light of the statutory presumption that grandparent visitation is not in the best interest of the child.
I. Facts
Appellant Karen Butler (the mother) married respondent Charles Harris (the father) on January 12, 1994. They separated on October 16, 1994, 10 days before the birth of their daughter, Emily. The mother filed for dissolution of marriage three months later, on January 18, 1995.
Clinical Psychologist Daniel O'Roarty, Ph.D., was appointed by the superior court to conduct a psychological assessment of the parties and reported that the mother and father met in San Diego in October, 1993, when the mother was a helicopter pilot in the Navy. They began living together two weeks after they met, later moving to a boat in the Chula Vista Marina. As noted above, they married in January, 1994, three months after they met.
The mother claimed that during the marriage the father was psychologically and physically abusive to her. He hit her and called her names. On one occasion, he pushed her overboard and then tried to run her over with their dinghy as she swam to shore. During an altercation when she was six months pregnant, he kicked her in the stomach.
The father denied these accusations, but admitted using and selling marijuana and, on one occasion, using crystal methamphetamine, and admitted striking and biting the mother on several occasions that he described as mutually combative.
As noted above, the mother left the father shortly before Emily was born and stayed in hotels and with a friend. She lived with the paternal grandparents, respondents Leanne and Charles Harris, for more than a week after Emily was born and then moved into a shelter for battered women. She took Emily to visit the father regularly.
On July 21, 1995, the superior court, pursuant to stipulation of the parties, bifurcated *846 the issues of child custody and visitation and entered judgment dissolving the marriage and granting the mother sole legal and physical custody of Emily, following the recommendation of Dr. O'Roarty. The judgment also provided that the mother could move to Maryland with Emily on or after August 5, 1995. The father was granted supervised visitation contingent on his undergoing psychotherapy, drug testing and attending Narcotics Anonymous meetings. A schedule was established for visitation pending the mother's move to Maryland, which permitted the paternal grandparents to be present. Also by stipulation, the paternal grandparents were joined as parties to the action. They agreed not to interfere with the mother's scheduled move to Maryland.
On August 2, 1995, the paternal grandparents filed a motion for visitation, alleging that the mother would not permit visitation absent a court order. The paternal grandparents asked that Emily spend 10 days at their home every other month. The mother's response noted that Emily was 11 months old and was still nursing. She asked that all visitation take place in Maryland where she was living with her parents and be supervised until the paternal grandparents "get therapy on the issue of abuse." The mother related that the father had been abused by the paternal grandfather, but the paternal grandparents denied this accusation. Family court services counselor Sandra Boyles conducted a mediation session in which the mother participated by telephone and the parties agreed that the paternal grandparents would visit Emily in Maryland for approximately 10 days, six times a year, with no overnight visits. Following a hearing, the court granted the paternal grandparents visitation with Emily in Maryland with no overnight visits and without the father being present as follows: four visits per year for up to seven days each in 1996, six visits per year for up to seven days each in 1997, and six visits per year for up to 10 days each in 1998. The court ordered the grandparents to attend four counseling sessions to address the issue of abuse.
On April 29, 1996, the mother filed a motion to terminate the paternal grandparents' visitation rights, alleging that their visits in January and April of 1996, "were extremely hostile and filled with conflict" and thus had been detrimental to Emily. The mother declared that Emily had nightmares after the paternal grandparents' last visit, cried during her nap times, and clung to the mother "for days after the visits," all of which behavior was unusual for her. The paternal grandparents filed a responsive declaration in which they agreed that the visits had been hostile, but placed the blame on the mother. Following a hearing, the court on October 30, 1996, denied the mother's motion to terminate the paternal grandparents' visitation rights and modified visitation to a maximum of four visits per year for a maximum of seven days each time, to continue until further order of the court.
On November 1, 1996, the paternal grandparents provided the mother with 30 days' notice of their intention to visit Emily on December 1, 1996, but received no response. They traveled to the mother's residence in Maryland and discovered that the mother and Emily had moved. The paternal grandparents hired several private investigators who, many months later, located the mother and the maternal grandparents in Utah. The mother had married Mark Butler, who had six children. The paternal grandparents contacted the mother and she agreed to visitation, which took place in mid-January 1998.
On January 20, 1998, the court found the mother in contempt for failing to comply with the court's orders that she keep the *847 paternal grandparents informed of her current address and permit the scheduled visitation. The court placed the mother on probation for two years. On July 21, 1998, the mother was ordered to pay $7,555 in attorney fees and expenses to the paternal grandparents, and the visitation order was modified to permit visitation within a 50-mile radius of the mother's home in Utah.
The paternal grandparents had week-long visits with Emily in Utah in April, July, and October of 1998. The paternal grandparents asked the mother if they could bring Emily, then 4 years old, to California on their next visit, but the Mother declined, saying she was "not comfortable sending Emily to California." In January of 1999, the paternal grandparents again visited Emily in Utah for seven days. The mother did not permit overnight visits.
On February 9, 1999, the paternal grandparents filed a motion to modify the visitation order to permit them to bring Emily to California for visitation and to permit overnight visits in Utah. On February 24, 1999, the father joined the paternal grandparents' request for visitation in California so that the father could visit Emily while she was in the care of his parents.
On March 17, 1999, pursuant to court order, the mother, the father, and the paternal grandparents met with family court services counselor Sandra Boyles. The father requested unsupervised visits with Emily or, at least, visits at his parents' home. The father became so agitated and hostile during the conference that Boyles asked him to leave. Boyles recommended that the father be permitted visitation only in the presence of a trained supervisor and that Emily not have contact with her father while in the care of her paternal grandparents. Boyles recommended that the paternal grandparents continue to have week-long visits with Emily four times per year until she started school. The next visit was to be in Utah, and Emily was to spend the week with the grandparents at a hotel. Subsequent visits were to be at the grandparents' home in California.
On March 31, 1999, the mother filed a declaration objecting to the recommendation that Emily visit the paternal grandparents in California on the ground that the grandparents would not be able to protect Emily from her father, who was violent, had abused the mother, and had threatened to take Emily.
At a hearing on May 5, 1999, the court observed that it understood why the mother was apprehensive about permitting Emily to visit the paternal grandparents in California, but added: "I don't share that apprehension at all." The court adopted Boyles's recommendations permitting the paternal grandparents to have week-long visits with Emily four times per year until she started school, with the next visit to take place in Utah and subsequent visits to take place in California. The court ordered the grandparents to permit no contact between Emily and her father during these visits. The grandparents visited Emily in Utah for a week in April, 1999 and Emily visited the grandparents' home in California in October, 1999 and January, 2000.
By letter dated February 5, 2000, the father informed the mother that he had moved into his parents' home. The paternal grandparents indicated that, nevertheless, the father would have no contact with Emily during her next visit.
On May 26, 2000, the paternal grandparents filed an order to show cause for visitation beginning when Emily started kindergarten in August 2000. The grandparents alleged they had had their fourth week-long visit with Emily in California in April *848 and were planning another before Emily started school. The grandparents requested the following visitation: two weeks in August, one week during Christmas/New Years, one week during Easter, and one week during June.
In a responsive declaration filed on June 12, 2000, the mother objected to court-ordered visitation, noting that she never would prevent Emily from being with her paternal grandparents, but believed it was wrong to force Emily to leave her family against her will. In her supporting points and authorities, the mother asked that the paternal grandparents' request for visitation be denied.
On June 19, 2000, the mother, the father, and the paternal grandparents participated in a mediation session with family court services counselor James Bruce. The mother wanted to limit the length of Emily's visits to one week. She reluctantly agreed to a two-week visit in June, but wanted one week in August and no visit during the Christmas holiday. Bruce opined that "the minor benefits from contact with the paternal grandparents and that it is in her best interest to continue to have contact with them." He noted that the mother did not dispute that Emily's contact with her paternal grandparents was beneficial, but believed such contact should not be court ordered. Bruce made the following recommendations, noting they were "admittedly arbitrary because the undersigned has not met Emily and does not know her temperament": visitation for 10 to 11 days twice during the summer. He deferred "to the wisdom of the court" regarding visitation during the Christmas holiday.
At a hearing on July 10, 2000, the court stated that it would apply "a best interest standard" that focused on the "health, safety and welfare" of the child. The court remarked that it did not question the mother's motivation to end court-ordered visitation by the paternal grandparents: "I do think she believes that it is best for this child if she provides the family unit and she makes the decisions as to what contact, if any, would exist between other people and this child." Regarding the paternal grandparents, the court stated its belief that "they truly love this child and they care about the child and that they want to continue to have that relationship and that it is very important to them." The court concluded: "I think presently, at least, that it is in the best interest of this child to continue to have a significant relationship with the grandparents," adding that the court did not believe "there is any realistic possibility that if I leave this to the mother's good graces, essentially as the parent, that she would do anything to encourage the relationship in spite of what she says. Her actions are absolutely contrary to that. . . ." The court acknowledged that visitation created practical problems for the Butler family, but concluded the difficulties did not justify cutting off the grandparents' visitation, concluding "that the rewards for the child are greater than any deficits that we have." The court noted that its conclusions were "tough calls because I do have to acknowledge that the grandparents are interfering to some degree with the mother's rights as a parent to the extent they exist to raise children. . . ."
The court awarded the paternal grandparents visitation for 12 days in August, 12 days in June, and from December 26 to 31. The court ordered that Emily fly unaccompanied to California on a nonstop flight beginning with the December visit if permitted by the airlines to do so, and required the mother to take Emily to the *849 airport in Utah and pick her up.[1] The paternal grandparents further were permitted to take Emily to visit other relatives in or out of California.
The mother appealed and the Court of Appeal reversed, holding that the visitation order denied the mother due process of law under both the federal and California Constitutions, explaining that the paternal grandparents should have been required "to show by clear and convincing evidence that the parents' decision [to deny or limit visitation] would be detrimental to the child."
At the request of the mother, and without objection by the paternal grandparents, we have taken judicial notice of the fact that after this court granted review, the superior court, on October 28, 2002, terminated the father's parental rights.
II. Discussion
Grandparents' rights to court-ordered visitation with their grandchildren are purely statutory. (White v. Jacobs (1988)
We first must determine which statute controls in this case. Section 3102 does not apply because neither parent is deceased.
Section 3103 provides that in specified proceedings involving the custody of a child, including proceedings for dissolution of marriage, "the court may grant reasonable visitation to a grandparent of a minor child of a party to the proceeding if the court determines that visitation by the grandparent is in the best interest of the child." (§ 3103, subd. (a).) The visitation order in the present case was issued in a proceeding for dissolution of marriage, but it was issued years after a judgment had been entered dissolving the marriage and awarding sole custody of the child to the mother.
Section 3104 permits a grandparent to petition a court for visitation if the child's parents are not married or are living separately or if certain other conditions apply. (§ 3104, subd. (b).) The court may grant reasonable visitation if the court "[f]inds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child" and "[b]alances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority." (§ 3104, subd. (a).)
Both section 3103 and section 3104 provide a rebuttable presumption that grandparent visitation is not in the child's best interest, if the parents agree that the grandparents should not be granted visitation. (§§ 3103, subd. (d), 3104, subd. (e).) Neither of these provisions apply in this case, however, because Emily's father supports the paternal grandparents' request for visitation rights.[6]
Section 3104 further applies the same rebuttable presumption against visitation "if the parent who has been awarded sole legal and physical custody of the child in another proceeding . . . objects to visitation by the grandparent." (§ 3104, subd. (f).) Section 3103 contains no similar provision addressing the situation in which a parent has been awarded sole custody of the child.
The grandparents argue that section 3103 is the controlling statute. Section 3103 applies "[n]otwithstanding any other provision of law, in a proceeding described in Section 3021," which includes "[a] proceeding for dissolution of marriage."[7] As *851 noted above, the present action is a proceeding for dissolution of marriage, but the order for grandparent visitation was made several years after judgment had been entered dissolving the marriage and granting sole custody of Emily to the mother. We must determine, therefore, whether the Legislature intended section 3103 to apply in marriage dissolution proceedings after entry of judgment dissolving the marriage and awarding custody of the child.
"The fundamental purpose of statutory construction is to ascertain the intent of the lawmakers so as to effectuate the purpose of the law. [Citations.] In order to determine this intent, we begin by examining the language of the statute. [Citations.]" (People v. Pieters (1991)
Considering section 3103 in light of section 3104, it appears that in marriage dissolution proceedings, the Legislature intended section 3103 to govern grandparent visitation only until entry of a judgment dissolving the marriage and awarding custody of the child. This construction of section 3103 furthers the Legislature's intent for the following reasons.
The apparent purpose of section 3103 is to permit a court to grant grandparent visitation during the pendency of certain judicial proceedings involving custody of the child. This permits the court in a marriage dissolution action, for example, to consider grandparent visitation when fashioning its custody and visitation orders. But the situation changes once the marriage has been dissolved and custody of the child and any visitation orders have been determined by entry of judgment. Although the court retains jurisdiction to modify its custody and visitation orders upon a showing of changed circumstances at any time while the child remains a minor (Burchard v. Garay (1986)
Our conclusion also is supported by the circumstance that section 3104, and not section 3103, contains a provision addressing the situation in which a parent has been granted sole custody of the child. As noted above, both statutes contain a rebuttable presumption against grandparent visitation if the parents agree that such visitation should be denied. But only 3104 also applies a rebuttable presumption against grandparent visitation if the parent granted sole custody of the child objects. We conclude that the Legislature did not include a similar provision in section 3103 because it would not be needed during marriage dissolution proceedings before a judgment awarding custody had been entered. There would be no need to include such a provision in section 3103 if, as we conclude, a request for grandparent visitation is governed by section 3104 once a judgment has been entered dissolving the marriage and awarding sole custody of the child to one parent.
Our construction prevents the anomalous result of applying a rebuttable presumption against grandparent visitation if a parent granted sole custody objects to a petition filed under section 3104, but not if the court grants such visitation in a marriage dissolution proceeding under section 3103. It is difficult to imagine why the Legislature would intend the presumption to apply in one circumstance but not the other.
We conclude, therefore, that the present case is governed by section 3104.
The mother contends that section 3104 is unconstitutional both on its face and as applied in this case, because it unduly burdens her parental liberty interest in the custody, care, and control of her child. We first address the mother's claim under the federal Constitution.
A sharply divided United States Supreme Court addressed the thorny issue of grandparent visitation in Troxel v. Granville, supra,
Justice O'Connor's plurality opinion in Troxel, in which Chief Justice Rehnquist, and Justices Ginsburg and Breyer joined, observed that "the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." (Troxel v. Granville, supra,
But the plurality did not prohibit the state from ordering grandparent visitation, stating instead: "The problem here is not that the Washington Superior Court intervened, but that when it did so, it gave no special weight at all to Granville's determination of her daughters' best interests." (Troxel v. Granville, supra,
Noting that "the court's presumption failed to provide any protection for [the mother's] fundamental constitutional right to make decisions concerning the rearing of her own daughters," the plurality included a "cf." cite to section 3104, subdivision (e), which, as noted above, creates a "rebuttable presumption that grandparent visitation is not in [the] child's best interest if [the] parents agree that visitation rights should not be granted." (Troxel v. Granville, supra,
The plurality in Troxel concluded that the Washington statute failed to give sufficient weight to the parent's judgment concerning the wisdom of grandparent visitation: "[T]he decision whether such an intergenerational relationship would be beneficial in any specific case is for the parent to make in the first instance. And, if a fit parent's decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination." (Troxel v. Granville, supra,
Although concluding that the Washington statute was unconstitutional, the plurality adopted a cautious approach in this sensitive area of law: "Because we rest our decision on the sweeping breadth of [the Washington statute] and the application of that broad, unlimited power in this case, we do not consider the primary constitutional question passed on by the Washington Supreme Court whether the Due Process Clause requires all nonparental visitation statutes to include a showing of harm or potential harm to the child as a condition precedent to granting visitation. We do not, and need not, define today the precise scope of the parental due process right in the visitation context. . . . [T]he constitutional protections in this area are best `elaborated with care.'" (Troxel v. *854 Granville, supra,
Justice Souter concurred in the judgment, but would have affirmed the Washington Supreme Court's ruling that the statute is unconstitutional on its face, saying the case does not "call for turning any fresh furrows in the `treacherous field' of substantive due process. [Citation.]" (Troxel v. Granville, supra,
Justice Thomas concurred that parents have a fundamental right "to direct the upbringing of their children." (Troxel v. Granville, supra,
The decision in Troxel does not support the mother's argument here that section 3104 is unconstitutional on its face. Section 3104 is significantly different from the Washington statute at issue in Troxel. The Washington statute was, in the words of the plurality in Troxel, "breathtakingly broad," permitting "`[a]ny person'" to petition the superior court for visitation rights "`at any time.'" (Troxel v. Granville, supra,
As the Court of Appeal recognized in Lopez v. Martinez, supra,
Accordingly, section 3104 does not suffer from the constitutional infirmities that plagued the Washington statute considered in Troxel. Section 3104 does not violate the federal Constitution on its face, as Justice Souter concluded the Washington statute did, because it does not permit "judicially compelled visitation by `any party' at `any time' a judge believed he `could make a "better" decision' than the objecting parent had done." (Troxel v. Granville, supra,
Neither does the decision in Troxel support the mother's argument here that section 3104 violates the federal Constitution as applied in this case. Troxel involved an order for grandparent visitation that was opposed by the child's sole surviving fit parent. That was not the situation before the superior court in this case when it issued the visitation order under review. Rather, the parents of the child in the present case disagreed concerning grandparent visitation, and the father had not been declared unfit and his parental rights had not yet been terminated. Nothing in the decision in Troxel suggests that an order for grandparent visitation that is supported by one parent infringes upon the parental rights of the other parent.
The mother attempts to equate herself to a sole surviving parent by describing the father as "uninterested" and asserting, without explanation or citation of authority, that he is "akin" to a deceased parent. We disagree. The father in the present case is alive and, as noted above, at the time of the visitation order at issue here, his parental rights had not been terminated. The mother had been awarded sole legal and physical custody of Emily, but this did not terminate the father's parental rights, nor did it terminate his due process interest in parenting. (See, e.g., Hoversten v. Superior Court (1999)
Court-ordered grandparent visitation over the objection of a sole surviving parent implicates that parent's right to the custody and control of his or her child. (Troxel, supra,
In his concurring and dissenting opinion, Justice Chin concludes that the father's support of the grandparents' request for visitation "is legally irrelevant and does not affect the constitutional protection to which [the mother], as Emily's sole legal custodian, is entitled against state interference with her parenting decisions." (Conc. and dis. opn. of Chin, J., post,
In his concurring and dissenting opinion, Justice Baxter concludes that "[t]he majority errs in reaching out to consider and reject the mother's as-applied constitutional challenge to section 3104(f)." (Conc. and dis. opn. of Baxter, J., post,
Justice Baxter's concurring and dissenting opinion cites, in support of his assertion that it is improper for us to decide whether the statute is unconstitutional as applied, the observation in Bowen v. Kendrick (1989)
Justice Baxter's concurring and dissenting opinion also cites our opinion in Tobe v. City of Santa Ana (1995)
Although we conclude that the superior court erred in failing to utilize the rebuttable presumption in section 3104, subdivision (f), it remains the case that the superior court did apply the statute and, thus, it is proper for this court to determine whether section 3104 is constitutional as applied in this case.
In addition to her reliance upon the federal Constitution, the mother also bases her attack on section 3104 upon the California Constitution, citing our decisions in Conservatorship of Wendland (2001)
We conclude, therefore, that section 3104 does not violate the federal or California Constitutions, either on its face or as applied.
As noted above, subdivision (f) of section 3104 creates "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 . . . objects to visitation by the grandparent." In the present case, the mother was awarded sole custody of Emily and objected to grandparent visitation. Accordingly, the grandparents were required to overcome a rebuttable presumption that visitation is not in Emily's best interest. The record before us reflects that the superior court did not consider this presumption, but rather expressly utilized a "best interest of the child" standard. Accordingly, we will remand this case to the superior court to reconsider the visitation order in light of the presumption that grandparent visitation is not in Emily's best interest.[8]
III. Disposition
We affirm the judgment of the Court of Appeal to the extent it reversed the order for grandparent visitation. The matter is remanded to the Court of Appeal with directions to remand the matter to the superior court for reconsideration of the order for grandparent visitation in light of the views expressed in this opinion and the superior court's subsequent order terminating the father's parental rights.
WE CONCUR: GEORGE, C.J., KENNARD and WERDEGAR, JJ.
Concurring and Dissenting Opinion by BAXTER, J.
I concur in the judgment sustaining Family Code section 3104, subdivision (f) (section 3104(f)) against a facial challenge under the state and federal Constitutions; vacating the grandparent visitation order presented here on the ground the superior court failed to apply section 3104(f); and remanding the matter to the superior court for it to apply section 3104(f) in the first instance. However, I respectfully decline to join the majority opinion for two reasons:
1. The majority errs in reaching out to consider and reject the mother's as-applied constitutional challenge to section 3104(f). (See maj. opn., ante, 17 Cal. Rptr.3d at pp. 854-856, 96 P.3d at pp. 151-152.) An "as-applied challenge" is "a claim that a statute is unconstitutional on the facts of a particular case or to a particular party." (Black's Law Dictionary (7th ed.1999) p. 223, col. 1.) An essential predicate for an as-applied challenge is that the statute actually have been applied. (See Bowen v. Kendrick (1988)
Until the statute is actually (and correctly) applied, it is impossible to know whether an order of visitation will be entered and, if so, its justification and scope. Obviously, the validity of any hypothetical future order will depend on an "analysis of the facts of [the] particular case . . . to determine the circumstances in which the statute or ordinance has been applied and . . . whether in those particular circumstances the application deprived the individual to whom it was applied of a protected right." (Tobe, supra,
But the majority's error is not merely that it has purported to consider and reject the mother's as-applied challenge to a statute even though we already have, on statutory grounds, vacated the very order that is the subject of her constitutional challenge. The more serious error is that in so doing, the majority has disregarded the fundamental principle of constitutional adjudication that "`we do not reach constitutional questions unless absolutely required to do so to dispose of the matter before us.' [Citations.] As the United States Supreme Court reiterated, `A fundamental and longstanding principle of judicial restraint requires that courts avoid reaching constitutional questions in advance of the necessity of deciding them.' [Citation.] Applying that principle, the high court observed that if statutory relief had been adequate in the case before it, `a constitutional decision would have been unnecessary and therefore inappropriate.'" (Santa Clara County Local Transportation Authority v. Guardino (1995)
Until today, judicial restraint had led us to construe statutes, if possible, so as to avoid constitutional questions. (E.g., Miller v. Municipal Court (1943)
2. The majority's categorical declaration that the mother has no federal or state constitutional interest at stake in this proceeding is bereft of legal authority and is far broader than is needed to decide this case. The majority rejects the mother's as-applied challenge under the federal Constitution and the entirety of her state constitutional claim at the threshold: In the majority's view, a court order granting third parties visitation with the child over the objection of the custodial parent implicates no constitutional right of the custodial parent, as long as the order is endorsed by the noncustodial parent. (Maj. opn., ante, 17 Cal.Rptr.3d at pp. 855-856, 96 P.3d at pp. 151-152.)
I do not know whether the majority is correct, although I observe that the majority fails to support its holding with citation to any legal authority or scholarly commentary and that neither party, nor their amici curiae, have contended that the mother has no constitutional rights here.[1] Moreover, under the majority's approach, a custodial parent would have no constitutional protection whatsoever if a state overrode that parent's objections and forced his or her child to go on visits with any third party even with complete strangers, and even if such visitation was demonstrably harmful to the child as long as the noncustodial parent acquiesced in the court order.
What is so disappointing is that this startling and novel conclusion is wholly unnecessary. As the majority elsewhere acknowledges, section 3104(f) is "[u]nlike the Washington statute at issue in Troxel" in that it "gives `special weight' to . . . the decision of a parent who has been awarded sole custody of the child" and therefore "does not suffer from the constitutional infirmities that plagued the Washington statute considered in Troxel." (Maj. opn., ante, 17 Cal.Rptr.3d at pp. 854-855, 96 P.3d at pp. 151-152.) In particular, the majority has determined that the protections *861 in section 3104(f) "prevent the situation that arose in Troxel in which the court ordered visitation over the objection of the child's sole surviving fit parent" based on nothing more than the court's own assessment of the child's best interest. (Maj. opn., ante, at p. 855,
For similar reasons, I believe the majority is also premature in holding that court-ordered grandparent visitation that is supported by a noncustodial parent implicates no right of privacy of the custodial parent under the California Constitution. Instead, I would reject the mother's facial challenge under well-settled law. Under our precedents, a statute may be invalidated on its face as violative of the state constitutional right to privacy only if the invasion of privacy is "sufficiently serious in [its] nature, scope, and actual or potential impact [as] to constitute an egregious breach of the social norms underlying the privacy right" (Hill v. National Collegiate Athletic Assn. (1994)
Because the majority has needlessly opined on these major constitutional issues without the aid of any legal authority and in defiance of fundamental canons of constitutional adjudication, I respectfully dissent from that portion of the majority opinion.
Concurring and Dissenting Opinion by CHIN, J.
I concur in the majority's conclusion that under the circumstances of this case, *862 Family Code section 3104[1] governs the request of respondents Leanne Harris and Charles Harris, Jr. (Grandparents) for visitation with their granddaughter Emily.
However, I disagree with the majority's unprecedented and troubling conclusion that if a noncustodial parent supports a grandparent's visitation request, a visitation order like the one at issue here which required a six-year-old child to fly unaccompanied to another state and effectively transferred her custody to a non parent in another state for extended time periods does not even implicate a custodial parent's constitutional right. This conclusion finds no support in the decisions of the high court and is contrary to case law both in California and elsewhere. In my view, the relevant authority establishes that court-ordered visitation by a grandparent against the wishes of a fit custodial parent infringes on that parent's fundamental right to direct his or her child's upbringing, and that this state infringement on a parent's fundamental right is unconstitutional absent clear and convincing evidence to rebut the presumption under section 3104, subdivision (f), that such visitation is not in the child's best interests. I dissent to the extent the majority holds otherwise.
Factual Background
Appellant Karen Butler (Karen) married respondent Charles Erik Harris (Charles) in January 1994. They separated in October 1994, only 10 days before the birth of their daughter, Emily. Karen formally filed for dissolution of marriage in January 1995, asserting that Charles had been psychologically and physically abusive to her. Charles admitted hitting Karen twice after an argument and biting her on another occasion. In July 1995, pursuant to stipulation, the trial court-ordered entry of a judgment of dissolution. The court's order awarded Karen "sole legal custody" and "sole physical" custody of Emily. By statute, the court's award of sole legal custody to Karen bestowed on her the exclusive "right and . . . responsibility to make the decisions relating to the health, education, and welfare of" Emily. (§ 3006.) Similarly, by statute, the court's award to Karen of sole physical custody placed Emily "under" Karen's exclusive "supervision," "subject to the power of the court to order visitation." (§ 3007.) Regarding visitation, the court granted Charles supervised visits if he complied with certain conditions. Finally, the court's order specified that that there would be no change in these arrangements absent "a showing of substantial change in circumstances."
In August 1995, Grandparents were joined "as parties to" the dissolution action pursuant to stipulation. The court's order joining Grandparents provided that they were bound by the terms of the stipulated judgment between Karen and Charles, including the award to Karen of sole legal and physical custody.
During the ensuing years, there were numerous proceedings and court orders involving the question of visitation by Grandparents. In May 1999, the court granted Grandparents week-long visits four times per year until Emily started school, and specified that Grandparents were not to permit Charles to have contact with Emily during those visits. In February 2000, Charles informed Karen that he was living with Grandparents. Nevertheless, Grandparents assured Karen that Charles would have no contact with Emily during her next visit.
Because the court's order of May 1999 governed only until Emily started school, Grandparents filed an order to show cause *863 in May 2000 requesting the following visitation after Emily began kindergarten in August 2000: two weeks in August, one week during the Christmas/New Year's period, one week during Easter, and one week in June. To accomplish these visits, they asked the court to order Karen to put six-year-old Emily on a plane by herself and send her from her home in Salt Lake City to San Diego, where Grandparents lived. They also asked the court for permission to take Emily to visit relatives in Northern California and Missouri upon giving Karen notice and information regarding itinerary and contact numbers. Finally, they asked the court to grant Charles supervised visitation with Emily during her visits with Grandparents.
Karen opposed Grandparents' request. She objected generally that, although she was willing to work out visitation with Grandparents, she did not think visitation should be court ordered. More specifically, she expressed concern that court-ordered visitation would cause Emily to feel that her mother had "no control over what happens to her." Karen also expressed concern that the visits to California uprooted Emily from her new family in Utah and hindered Karen's efforts to integrate Emily into the new family. In her opposition declaration, Karen stated her concern that the extensive court-ordered visitation Grandparents were requesting would "destroy the feeling of belonging that every child needs in order to feel safe and secure with her family in her home." Finally, Karen objected to having a court order her to "put[ ] her . . . six year-old daughter on a plane by herself to go to" visit Grandparents in California.
The trial court granted Grandparents' visitation request. It did not "question[ ]" Karen's "motivation" or the sincerity of her belief that "it is best for this child if [Karen] provides the family unit and she makes the decisions as to what contact, if any, would exist between other people and this child." However, the court was of the "firm belief" that Emily would "be better off with some meaningful relationship with . . . extended family," and it saw no "realistic possibility" that Karen "would do anything to encourage the relationship" between Emily and Grandparents "in spite of what she [said]." Thus, after finding that it was in Emily's "best interest . . . to continue to have a significant relationship with the Grandparents," the court ordered the following: (1) each year, Emily would have to visit Grandparents in San Diego for 12 days in August, from December 26 to 31, and for 12 days in June; (2) starting in December 2000, when Emily was only six years old, Karen would have to put Emily on a plane in Salt Lake City to fly to California by herself; and (3) during Emily's visits, Grandparents could take her to see relatives in California or any other state, and had to inform Karen of Emily's whereabouts only if they took her "out of [San Diego] County overnight."
The Court of Appeal reversed, finding that the visitation order violated both the California and United States Constitutions. The court explained that the governing statute was section 3104, subdivision (f), which provides: "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 . . . objects to visitation by the grandparent." The court next held that although the statute, as written, does not violate the federal Constitution, it violates a parent's "fundamental liberty interest" under the state Constitution unless "read" to require enforcement of the custodial parent's decision absent "clear and convincing evidence that the child will suffer harm or potential harm if visitation is *864 not ordered." The court then held that the application of the statute here violated Karen's state and federal constitutional rights because the trial court "did nothing more than apply a bare-bones best interest test and did not accord" Karen's decision "any deference or material weight."
Discussion
A. Custodial Parents Have a Fundamental Constitutional Right to Make Decisions Regarding Their Children.
"`Personal liberty is a fundamental interest, second only to life itself, as an interest protected under both the California and United States Constitutions.' [Citation.]" (In re Roger S. (1977)
"`Encompassed within [this] well-established fundamental right of parents to raise their children is the right to determine with whom their children should associate. [Citation.]' [Citation.]" (Punsly v. Ho (2001)
B. Court-ordered Visitation Infringes on the Constitutional Right of Custodial Parents to Direct Their Children's Upbringing.
In several ways, court orders granting visitation rights to third parties, including grandparents, infringe on the constitutional right of custodial parents to direct their children's upbringing. As noted above, *865 both the federal and state Constitutions establish the right of custodial parents to decide with whom their children will associate. Obviously, court-ordered visitation over a custodial parent's objection infringes on that right. Moreover, California courts have long held that visitation is really just "a limited form of custody during the time the visitation rights are being exercised." (Perry v. Superior Court (1980)
The visitation ordered in this case well illustrates the extent to which court-ordered visitation infringes on a custodial parent's constitutional right. As noted above, the trial court here ordered that three times a year, starting when Emily was only six years old, Karen would have to put Emily on a plane in Salt Lake City to fly to California by herself, thus transferring Emily's care and custody to Grandparents for extended periods of time. The visitation periods the court specified meant that Emily would be separated from the rest of her family in Utah during the Christmas/New Year's holiday period and parts of the summer vacation period. Moreover, the court ruled that during these periods of transferred custody, Grandparents could take Emily anywhere else in the United States to see other relatives, with the only limitation being that if they took Emily "out of [San Diego] County overnight," they had to inform Karen of Emily's whereabouts. Clearly, the court's visitation order significantly infringed on Karen's constitutional right to direct Emily's upbringing.
Court-ordered visitation also infringes on a custodial parent's constitutional right in another, more general sense. As a majority of the high court recently recognized, where, as here, third parties ask a court to override a custodial parent's decision and to order visitation, "the burden of litigating" the visitation request "can itself be `so disruptive of the parent-child relationship that the constitutional right of a custodial parent to make certain basic determinations for the child's welfare becomes implicated.' [Citation.]" (Troxel, supra,
C. Court-ordered Visitation by a Third Party Infringes on a Custodial Parent's Constitutional Rights Regardless of the Noncustodial Parent's Support for Visitation.
In its analysis, the majority stresses the fact that Emily's father, Charles, "supported" Grandparents' visitation request. (Maj. opn., ante, at pp. 226-228, 230, 17 Cal.Rptr.3d at pp. 855-856, 858, 96 P.3d at pp. 151-152,153.) According to the majority, when a state, at the request of a third party, steps in and overrides the decision of a fit parent with sole legal and physical custody regarding visitation by that third party, the state's act of interference does not even "infringe[ ]" on the custodial parent's constitutional rights if the noncustodial parent supports the visitation request. (Ibid.)
For several reasons, I disagree with the majority's view that a noncustodial parent's support for a third party's visitation request completely negates the custodial parent's constitutional right to make parenting decisions without state interference. First, the majority fails to explain why, as either a factual or legal matter, such support has any effect on this constitutional right. As noted above, in July 1995, Charles stipulated that Karen would have "sole legal custody" and "sole physical" custody of Emily. Thus, Charles agreed that Karen would have the exclusive "right and . . . responsibility to make the decisions relating to" Emily's "health, education, and welfare" (§ 3006) and that Emily would be "under" Karen's exclusive "supervision." (§ 3007.) By doing so, Charles waived his right to have any legal say in most of the decisions regarding Emily's upbringing, including the decision as to whether she may associate with particular individuals. Given Charles's stipulation and its legal effect under California law, Charles's support for Grandparents' visitation request is legally irrelevant and does not affect the constitutional protection to which Karen, as Emily's sole legal custodian, is entitled against state interference with her parenting decisions. The majority neither explains its contrary view nor cites any supporting authority.[2]
Second, the majority's view is inconsistent with precedent, both in California and elsewhere. The decision most directly on point is perhaps In re Marriage of Howard (Iowa 2003)
The Iowa Supreme Court's analysis in Howard echoes the analysis our own Courts of Appeal have adopted in determining whether and when the state may intervene to resolve disputes between divorced parents. In In re Marriage of Mentry (1983)
Decisions from other states are in accord with the analysis in Howard and Mentry, including some that specifically involve statutes granting visitation rights to grandparents. For example, in Beagle *868 v. Beagle (Fla.1996)
In Rust v. Rust (Tenn. Ct.App. 1993)
As these decisions demonstrate, courts in California and elsewhere agree that when the state steps in and interferes with a parent's decision regarding his or her child, the parent's constitutional rights have been infringed on whether or not the other parent supports the state's decision. They support the conclusion that the trial court's visitation order here infringed on Karen's constitutional rights notwithstanding Charles's support for Grandparents' request. The majority's contrary conclusion is inconsistent with these decisions.
The only justification the majority gives for its conclusion is that nothing in Troxel or the California decisions Karen cites suggests that a visitation order supported by one parent infringes on the parental rights of the other parent. (Maj. opn., ante, 17 Cal.Rptr.3d at pp. 855-856, 858, 96 P.3d at *869 pp. 151-152, 153.) However, nothing in any of those decisions supports the majority's view, and the majority does not contend otherwise. Nor does anything in those decisions support the majority's view that for purposes of third party visitation, there is a constitutionally significant difference between a "sole surviving parent" and a divorced parent with sole legal custody of his or her child. (Maj. opn., ante, at pp. 854-856, 96 P.3d at pp. 151-53.) Again, the majority does not contend otherwise. Finally, the majority offers no persuasive reason for ignoring the constitutional privacy decisions of this court that Karen cites; without analysis, the majority summarily disregards those decisions merely because they involved a different factual "context." (Maj. opn., ante, at p. 857,
I disagree with the majority's view for one additional and important reason: its implications and consequences. It is a fundamental precept that constitutional due process protections do not apply if no state action implicates or infringes upon a constitutionally protected right or interest. (See, e.g., Board of Regents v. Roth (1972)
*870 D. The Visitation Order Here Is Unconstitutional Absent Clear and Convincing Evidence to Overcome the Presumption that Visitation Is Not in the Child's Best Interests.
Not every state act that infringes on a fundamental constitutional right is unconstitutional. (See Carey v. Population Services International (1977)
In constitutional terms, the interest the state seeks to serve through section 3104 is certainly compelling. "Numerous California decisions recognize that the state has a special and particularly compelling interest in protecting the health and welfare of children. [Citations.]" (American Academy of Pediatrics v. Lungren (1997)
In answering this question, it is necessary first to consider how section 3104 operates. The statute permits a court, on petition of a grandparent, to grant "reasonable visitation rights to the grandparent." (§ 3104, subd. (a).) It places two general limitations on a court's power to grant such rights. First, a court must "[b]alance the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority." (§ 3104, subd. (a)(2).) Second, a court may not award visitation rights unless it "[f]inds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child." (§ 3104, subd. (a)(1).) On the facts of this case, the statute places one additional limitation on a court's power to grant visitation; because Karen has sole legal and physical custody and "objects to visitation," the court must apply "a rebuttable presumption affecting the burden of proof that the visitation . . . is not in the best interest of [the] child . . . ." (§ 3104, subd. (f).)
The majority holds that the rebuttable presumption in section 3104, subdivision (f), preserves the statute's constitutionality as it applies in this case. In this regard, the majority summarily asserts that this presumption "prevent[s] the situation that arose in Troxel in which the court-ordered visitation over the objection of the child's sole surviving fit parent based upon a finding that such visitation was in the child's best interest." (Maj. opn., ante,
Given the legal effect of the presumption under California law, the majority's assertion is incorrect unless we require petitioning grandparents to rebut the presumption with clear and convincing evidence. Under *871 our Evidence Code, "[t]he effect of a presumption affecting the burden of proof is to impose upon the party against whom it operates the burden of proof as to the nonexistence of the presumed fact." (Evid.Code, § 606.) Thus, in this case, the rebuttable presumption under section 3104, subdivision (f), does nothing more than put the burden on Grandparents, as the parties against whom the presumption operates, to prove that denying visitation is not in Emily's best interest.
In light of Evidence Code section 606, the rebuttable presumption under Family Code section 3104, subdivision (f), though sounding formidable, really does very little if it may be rebutted by a simple preponderance of the evidence. The structure of section 3104 which permits a visitation award only on a grandparent's petition and a court's finding that visitation is in the child's best interest already suggests that the burden of proof regarding the child's best interests should be on the grandparent, as the petitioning party. The rebuttable presumption seems merely to confirm this fact. As explained in the official comment to Evidence Code section 606 by the Assembly Committee on Judiciary, a presumption affecting the burden of proof has "no effect" where "the party against whom the presumption operates already has the same burden of proof as to the nonexistence of the presumed fact." (Assem. Judiciary Com. com., 29B Pt. 2 West's Ann. Evid.Code (1995 ed.) Foll. § 606, p. 65.) The official comment to Evidence Code section 606 also explains that "[i]n the ordinary case, the party against whom" such a presumption operates merely has "the burden of proving the nonexistence of the presumed fact by a preponderance of the evidence." (Assem. Judiciary Com. com., 29B Pt. 2 West's Ann. Evid.Code, supra, foll. § 606, p. 64.) Consistent with this comment, Evidence Code section 115 provides that "[e]xcept as otherwise provided by law, the burden of proof requires proof by a preponderance of the evidence." If the preponderance standard applies here, then the rebuttable presumption under Family Code section 3104, subdivision (f), simply puts the burden on a petitioning grandparent to convince a judge that visitation over the custodial parent's objection is "more likely than not" in the child's best interest. (Aguilar v. Atlantic Richfield Co. (2001)
Contrary to the majority's assertion, the high court in Troxel did not declare otherwise. (Maj. opn., ante,
Nevertheless, we may "construe" the statute to preserve its constitutionality "by requiring clear and convincing evidence" to rebut the presumption that visitation by a petitioning grandparent over a custodial parent's objection is not in the child's best interest.[5] (Conservatorship of Wendland (2001)
"The function of a standard of proof, as that concept is embodied in the Due Process Clause and in the realm of factfinding, is to `instruct the factfinder concerning the degree of confidence our society thinks [the factfinder] should have in the correctness of factual conclusions for a particular type of adjudication.' [Citation.] The standard serves to allocate the risk of error between the litigants and to indicate the relative importance attached to the ultimate decision." (Addington v. Texas (1979)
On the other hand, in civil cases where "[t]he interests at stake . . . are . . . more substantial than mere loss of money," the "clear and convincing evidence" standard applies. (Addington, supra, 441 U.S. at pp. 424-425,
Applying these principles, I conclude, as did the Court of Appeal, that the "clear and convincing evidence" standard must be applied in determining whether a court, on *874 the state's behalf, may grant visitation rights to grandparents over the objection of a child's custodial parent. As explained above, a parent's constitutionally protected liberty interest in directing his or her child's upbringing is both fundamental and compelling; it is possibly the oldest fundamental liberty interest the high court has recognized and is ranked among the most basic of civil rights. (Troxel, supra,
Moreover, the nature of the factual determination a court must make under section 3104 whether visitation is in the child's best interests heightens the risk of error. The high court has observed that the "`best interests'" standard is "vague" and that "judges . . . utilizing [it] . . . may find it difficult . . . to avoid decisions resting on subjective values." (Smith v. Organization of Foster Families (1977)
*875 In light of the weight of the parent's interest at stake here, I similarly conclude that the "clear and convincing evidence" standard of proof is required with regard to section 3104. As the Court of Appeal held, this standard "is necessary to assure [that] adequate deference is accorded to a fit parent's decisions about raising his or her children." A lower standard of proof creates too great a risk of "having a court [merely] substitute its own views" regarding the child's best interests "for those of a fit parent." And, as the plurality explained in Troxel, "the Due Process Clause does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a `better' decision could be made." (Troxel, supra, 530 U.S. at pp. 72-73,
Conclusion
I am not insensitive to the tremendous hurt most grandparents feel when they are cut off from their grandchildren. Moreover, like most people, I believe that grandparents generally should be an integral part of a child's upbringing and that most of the time, they have an extremely positive impact on the child. Thus, "[i]n an ideal world, parents might always seek to cultivate the bonds between grandparents and their grandchildren." (Troxel, supra,
Concurring and Dissenting Opinion by BROWN, J.
I agree with the majority that Family Code[1] section 3104 controls this case, that the section is facially constitutional, and that the matter should be remanded for the trial court to reconsider its July 2000 visitation order in light of section 3104, subdivision (f). I disagree with the majority that an order imposing grandparent visitation would never infringe on a sole custodial parent's constitutional rights if the child's noncustodial parent, who in this case had no visitation rights, had not seen his five-year-old daughter in five years, and has since had his own parental rights terminated, supported such visitation. Moreover, I agree with Justice Baxter that any conclusion regarding the mother's as-applied challenge to section 3104 is premature unless and until the statute is actually applied on remand. (Conc. and dis. opn. by Baxter, J., ante, 17 Cal.Rptr.3d at pp. 858-860, 96 P.3d at pp. 151-154.)
In addition, "to minimize the possibility of its unconstitutional application," I agree with Justice Chin to the extent he concludes section 3104, subdivision (f), should be read to require clear and convincing evidence to rebut the presumption that grandparent visitation is not in the child's best interest if the sole custodial parent objects. (Conservatorship of Wendland (2001)
Nevertheless, it is also critical to acknowledge that "[c]ases like this do not present a bipolar struggle between the parents and the State over who has final authority to determine what is in a child's best interests. There is at a minimum a third individual, whose interests are implicated in every case to which the statute applies-the child." (Troxel v. Granville (2000)
Suppose grandparents have for years devoted themselves to nurturing and raising a grandchild, acting essentially as de facto parents under circumstances in which their own child, the natural parent, has personal difficulties rendering her incapable of caring for her own child. Such grandparents fill an incalculable void in the child's life, and have "developed a relationship *877 with [the] child which is not necessarily subject to absolute parental veto." (Troxel, supra,
In a perfect world, family conflicts would not deteriorate into public brawls; courts would not be required to intervene. Parents would always act rationally and in the best interests of their offspring, and children would never be used as pawns or treated as chattel. But we do not live in a perfect world. When courts are forced to intrude, we must rely on burdens of proof and judicial balancing acts to protect a significant sphere of parental authority and preserve as much flexibility as possible. This is not the best of all possible worlds, it is just the best we can do.
Here, Emily is now nearly 10, and capable of voicing her own preferences. Her mother is a fit parent who did not oppose visitation, but who reasonably objected to the expansive order regarding her then five-year-old daughter. (Maj. opn., ante, 17 Cal.Rptr.3d at pp. 848-849,
NOTES
Notes
[*] Werdegar, J., did not participate therein. Baxter and Chin, JJ., dissented.
[1] Pending these proceedings, the Court of Appeal ordered that Emily be accompanied by one of the paternal grandparents during any travel.
[2] All further statutory references are to the Family Code, unless otherwise noted.
Section 3102, subdivision (a), provides, in pertinent part: "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." Subdivision (c) states that the section "does not apply if the child has been adopted by a person other than a stepparent or grandparent of the child" and that "[a]ny visitation rights granted pursuant to this section automatically terminate if the child is adopted" by such a person.
[3] Section 3103 provides, in pertinent part: "(a) Notwithstanding any other provision of law, in a proceeding described in Section 3021, the court may grant reasonable visitation to a grandparent of a minor child of a party to the proceeding if the court determines that visitation by the grandparent is in the best interest of the child. [¶] . . . [¶] (d) 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 child's parents agree that the grandparent should not be granted visitation rights."
[4] Section 3104 provides, in pertinent part: "(a) On petition to the court by a grandparent of a minor child, the court may grant reasonable visitation rights to the grandparent if the court does both of the following: [¶] (1) Finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child. [¶] (2) Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority. [¶] (b) A petition for visitation under this section may not be filed while the natural or adoptive parents are married, unless one or more of the following circumstances exist: [¶] (1) The parents are currently living separately and apart on a permanent or indefinite basis. [¶] (2) One of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse. [¶] (3) One of the parents joins in the petition with the grandparents. [¶] (4) The child is not residing with either parent. [¶] . . . [¶] (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 grandparents 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."
[5] In addition, section 3100 provides that in making an order for joint custody of a minor child, "[i]n the discretion of the court, reasonable visitation rights may be granted to any other person having an interest in the welfare of the child." As noted above, the present case does not involve an order for joint custody.
[6] As noted above, the superior court has since terminated the father's parental rights, but this circumstance does not affect our analysis because it occurred after the superior court issued the order here at issue.
[7] Section 3021 provides: "This part applies in any of the following: [¶] (a) A proceeding for dissolution of marriage. [¶] (b) A proceeding for nullity of marriage. [¶] (c) A proceeding for legal separation of the parties. [¶] (d) An action for exclusive custody pursuant to Section 3120.[¶] (e) A proceeding to determine physical or legal custody or for visitation in a proceeding pursuant to the Domestic Violence Prevention Act . . . . [¶] . . . [¶] (f) A proceeding to determine physical or legal custody or visitation in an action pursuant to the Uniform Parentage Act . . . . [¶] (g) A proceeding to determine physical or legal custody or visitation in an action brought by the district attorney pursuant to Section 17404."
[8] Justice Baxter's concurring and dissenting opinion asserts that although it is proper for us to decide that the statute is constitutional on its face, we can and should avoid deciding whether the statute is constitutional as applied because the matter must be remanded for the superior court to apply the rebuttal presumption in section 3104, subdivision (f). We do not agree that it is unnecessary to reach the constitutional issue. If we agreed with the mother that section 3104 is unconstitutional as applied to a parent such as herself who has been granted sole custody of the child, there would be no need to remand the matter.
[1] Indeed, as stated in their brief, the grandparents "do not dispute that the Mother has a legally protected privacy right in regards to the parenting of her child[,] which would include control over relinquishment of her child to a third party for visitation."
[2] As we noted in Kasler v. Lockyer (2000)
[1] Except as otherwise indicated, all further statutory references are to the Family Code.
[2] Ironically, according to the majority, although Charles himself has no right to visit Emily, his support for Grandparents' visitation request completely negates Karen's constitutional rights and strips her of any constitutional protection against state interference with her parenting decisions as Emily's sole custodian. Moreover, the trial court's refusal to grant Charles even supervised visitation undermines the majority's factually unsupported assertion that he is a "fit" parent. (Maj. opn., ante,
[3] The court limited its decision to situations "in which a child is living with both natural parents." (Beagle. v. Beagle, supra,
[4] I note that the majority's conclusion in this regard renders its earlier discussion of Troxel completely unnecessary. The plurality in Troxel concluded that the visitation order there at issue "infringe[d] on" the parent's "fundamental parental right" and that the infringement violated the federal "Due Process Clause" because the court issuing the order "accorded no deference," "presumption of validity," or "weight" to the parent's decision. (Troxel, supra,
[5] Adopting this standard of proof in all visitation cases is not inconsistent with the Troxel plurality's refusal to make broad pronouncements about a statute's facial constitutionality. The high court "never has approved case-by-case determination of the proper standard of proof for a given proceeding." (Santosky, supra,
[6] The Court of Appeal recognized this responsibility and construed section 3104 to require clear and convincing evidence. Despite this holding and the fact that the parties and amici curiae have briefed the issue in this court, the majority does not even mention it.
[7] Karen asserts, and the Court of Appeal held, that section 3104 is unconstitutional unless construed to require a showing of actual or potential harm. In most cases, the elevated standard of proof I would impose clear and convincing evidence to rebut the presumption that visitation over the custodial parent's objection is not in the child's best interest will require grandparents seeking visitation to show that denial of visitation would result in some kind of harm or potential harm to the child. Moreover, as previously noted, in addition to a finding regarding the child's best interest, section 3104 prohibits court-ordered visitation unless "there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond" between them, and the court considers "the right of the parents to exercise their parental authority." (§ 3104, subd. (a)(1), (2).) Given these requirements, I am not prepared to say that section 3104 is facially unconstitutional unless construed to require a showing of harm or potential harm. (See Troxel, supra,
[1] All further statutory references are to this code.