Can a Fit Mother Block Grandparents' Visits?

The California Supreme Court is struggling to decide whether state law allows courts to grant visitation rights to grandparents over the objections of parents who have not been declared unfit. There is widespread interest in the case, with amici curiae including the Association of Certified Family Law Specialists, the Coalition for Restoration of Parental Rights, the American Civil Liberties Union and two gay and lesbian groups — Lambda Legal Defense and Education Fund, and the National Center for Lesbian Rights. Family Code Section 3104 allows courts to grant visitation to grandparents if there is a strong familial bond and if it's in the best interests of the grandchild.

In Re the Marriage of Harris

The case is In re the Marriage of Harris, S101836. The court must decide whether state statutes are unconstitutional in light of a 4-year-old U.S. Supreme Court ruling that said good parents' opinions must be taken into account, on the presumption they are acting in their children's best interests.

In 2001, San Diego's 4th District Court of Appeal ruled that the law violated Karen Butler's due process rights under the federal and state constitutions. Butler's in-laws, Charles and Leanne Harris, had initially sought visitation rights to granddaughter Emily Hope Harris after their son and Butler split. San Diego County Superior Court Judge Thomas Ashworth III granted their request. On May 26, the Supreme Court listened intently during oral arguments as Paul Leehey, the Fallbrook, CA, attorney who represents the grandparents, argued that the state law remains constitutional.

Justice Kathryn Mickle Werdegar, however, noted that the mother had not been found unfit for any reason and that she had been granted sole custody. “We do, indeed, have a mother who has been given complete control of the child,” Werdegar said. “And she objects to visitation by the grandparents.” But, Leehey responded, the law requires that the child's interests prevail. “The rights of the child,” he said, “cannot be waived at the whim of the mother.”

Troxel v. Granville

When his turn came, Jeffrey Doeringer, a Huntington Beach, CA, attorney who represents the mother, argued that the U.S. Supreme Court's 2000 ruling in Troxel v. Granville, 530 U.S. 57, and the state constitution's guarantee of liberty interests and due process rights require that parents' privacy rights be taken into consideration. Justice Marvin Baxter asked if that would apply if a fit parent acts vindictively in blocking grandparent visitation.

“At what point,” he asked, “does the privacy interest of the child kick in? Would the parent's privacy rights,” he added, “trump the best interests of the children?” Doeringer said it would. “The minor's rights, as long as there is no showing of harm, should follow the rights of the fit parent,” he argued.

In a final plea, Leehey, argued that the granddaughter, now 9 years old, would be harmed if the courts were to terminate visitation. “Who is going to tell her she can't see her grandmother anymore?” he said. “She has had a standing relationship with her grandparents. She now has rights that have to be equal to, if not greater than, her mother's.”

The California Supreme Court is struggling to decide whether state law allows courts to grant visitation rights to grandparents over the objections of parents who have not been declared unfit. There is widespread interest in the case, with amici curiae including the Association of Certified Family Law Specialists, the Coalition for Restoration of Parental Rights, the American Civil Liberties Union and two gay and lesbian groups — Lambda Legal Defense and Education Fund, and the National Center for Lesbian Rights. Family Code Section 3104 allows courts to grant visitation to grandparents if there is a strong familial bond and if it's in the best interests of the grandchild.

In Re the Marriage of Harris

The case is In re the Marriage of Harris, S101836. The court must decide whether state statutes are unconstitutional in light of a 4-year-old U.S. Supreme Court ruling that said good parents' opinions must be taken into account, on the presumption they are acting in their children's best interests.

In 2001, San Diego's 4th District Court of Appeal ruled that the law violated Karen Butler's due process rights under the federal and state constitutions. Butler's in-laws, Charles and Leanne Harris, had initially sought visitation rights to granddaughter Emily Hope Harris after their son and Butler split. San Diego County Superior Court Judge Thomas Ashworth III granted their request. On May 26, the Supreme Court listened intently during oral arguments as Paul Leehey, the Fallbrook, CA, attorney who represents the grandparents, argued that the state law remains constitutional.

Justice Kathryn Mickle Werdegar, however, noted that the mother had not been found unfit for any reason and that she had been granted sole custody. “We do, indeed, have a mother who has been given complete control of the child,” Werdegar said. “And she objects to visitation by the grandparents.” But, Leehey responded, the law requires that the child's interests prevail. “The rights of the child,” he said, “cannot be waived at the whim of the mother.”

Troxel v. Granville

When his turn came, Jeffrey Doeringer, a Huntington Beach, CA, attorney who represents the mother, argued that the U.S. Supreme Court's 2000 ruling in Troxel v. Granville , 530 U.S. 57, and the state constitution's guarantee of liberty interests and due process rights require that parents' privacy rights be taken into consideration. Justice Marvin Baxter asked if that would apply if a fit parent acts vindictively in blocking grandparent visitation.

“At what point,” he asked, “does the privacy interest of the child kick in? Would the parent's privacy rights,” he added, “trump the best interests of the children?” Doeringer said it would. “The minor's rights, as long as there is no showing of harm, should follow the rights of the fit parent,” he argued.

In a final plea, Leehey, argued that the granddaughter, now 9 years old, would be harmed if the courts were to terminate visitation. “Who is going to tell her she can't see her grandmother anymore?” he said. “She has had a standing relationship with her grandparents. She now has rights that have to be equal to, if not greater than, her mother's.”