Other Cases Affecting Children

Punsly v. Ho (2001) 87 Cal.App.4th 1099 [105 Cal.Rptr.2d 139]. Court of Appeal, Fourth District, Division 1.

The trial court granted a child's grandparents visitation under Family Code section 3102. A mother and father were divorced when their daughter was two years old. They shared joint legal and physical custody, with the mother having primary physical custody. Approximately four years later the father was diagnosed with bone cancer and died. Following the father's death, his parents continued to visit the child. The grandparents sought to arrange a visitation schedule. The mother objected to their proposed schedule and offered limited visits. The grandparents rejected the mother's limited schedule and petitioned the court under Family Code section 3102. The court ordered visits once every other month, a weekly telephone call, and ancillary orders. The mother appealed the visitation order, contending that section 3102 was unconstitutionally applied in this case.

The Court of Appeal held that the section 3102 application unduly infringed on the mother's fundamental parental rights, and reversed the decision of the trial court. The appellate court rejected the grandparents' argument that it did not have the discretion to hear the constitutionality claim. Because the mother in this case did not voluntarily agree to the court's interference with her parental rights, and also because of the importance of the question about the constitutionality of visitation statutes, the appellate court had the discretion to hear the case. Section 3102 states in pertinent part that if either parent of an unemancipated 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 it is in the best interest of the child. The mother appealed the constitutionality of section 3102 as applied and did not challenge the statute facially. The U.S. Supreme Court's decision in Troxel v. Granville (2000) 530 U.S. 57 [120 S.Ct. 2054] guided the appellate court. In Troxel, the Supreme Court held that a Washington statute that authorized nonparental visitation with a child was unconstitutionally applied. The factors that the Supreme Court addressed were: (1) there was no allegation that the mother was an unfit parent; (2) the trial court gave no special weight to the mother's determination of the best interest of the child; and (3) the trial court did not give any weight to the fact that the mother did agree to allow some visitation between the grandparents and the child.

The grandparents in this case argued that section 3102 is not as "breathtakingly broad" as the Washington statute had been described. The appellate court rejected this argument and determined that like the Washington statute, section 3102 "authorizes a court to grant such visitation to a child's grandparents solely upon finding the best interests of the child." In this case, there was no allegation that the mother was unfit to raise her child and the parent-child relationship was loving and supportive. Before a court may intervene, the parent must have the opportunity to negotiate a visitation plan. In this case, the mother did propose her own visitation schedule. The schedule attempted to minimize the mother's driving from San Diego to Los Angeles, where the grandparents lived, because they very rarely made the trip down south.

The appellate court determined that the mother's constitutional rights as a parent were implicated when the section 3102 petition was filed. The court interfered despite her objections and appointed the child independent counsel. The court failed to make the proper presumptions regarding visitation as it was called upon to determine the best interest of the child. There is a presumption that fit parents act in the best interest of their children. The appellate court noted that the fitness of the mother was unquestioned. The trial court dismissed the mother's concerns that the grandparents used poor language around her daughter, were insensitive to the child's needs, and did not accept her biracial background. The trial court also recognized that there was no strong bond between the grandparents and the child. The appellate court held that the mother's fundamental due process rights as a fit custodial parent were violated. The appellate court reversed the decision of the trial court and directed it to vacate the grandparents' visitation order request and deny such request. The trial court was required stay the visitation order immediately, and the grandparents were directed to pay the mother's costs on appeal.