Recent Grandparent Visitation Decision Signals Changing Perception of Family Unit

As you may recall from your constitutional law class in law school, the history of grandparent visitation rights is convoluted and deeply seeded in what is “perhaps the oldest of the fundamental liberty interests … the interest of parents in the care, custody and control of their children.” Troxel v. Granville, 530 U.S. 57 (2000). Due to the seminal holding in Troxel v. Granville, the law on grandparent visitation, specifically in California, has remained severely limited given the unwillingness of states to interfere with constitutional rights. So, it’s no surprise that even the most experienced family law attorney has probably handled less than a handful of grandparent visitation cases. With the recent Stuard v. Stuard, Super. Ct. No. 12FL07391 decision and the changing definition of “family,” however, the landscape of grandparent visitation may be evolving in favor of grandparents.

The facts of Stuard are simple. Jeff and Cindy filed a petition for visitation with their granddaughter, Riley, pursuant to California Family Code § 3104, which applies in instances where the child’s parents are unmarried. Riley’s parents, Matthew and Rebekah, were divorced. Interestingly, the parent objecting to the visitation was Matthew. Before problems started to develop between Matthew and his parents, Jeff and Cindy had a loving relationship with Riley. At one point, Matthew and Riley even moved in with Jeff and Cindy following his divorce. Ultimately, Matthew’s relationship with his parents soured and he refused to allow Riley to have any contact with Jeff and Cindy. Rebekah facilitated visitation with Jeff and Cindy independently, but when tensions escalated, she withdrew herself from the conflict, which forced Jeff and Cindy to petition the court for visitation with their grandchild.


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On Matthew’s appeal, the appellate court affirmed the trial court’s decision to grant visitation to Jeff and Cindy under section 3104. the court found that the “rebuttable presumption that the visitation of a grandparent is not in the best interest of a minor child” was overcome and that the two-prong analysis of section 3104 was appropriately applied and satisfied. the court also balanced the interests of Riley’s right to visitation against Matthew and Rebekah’s right to exercise authority. In support of his fundamental right to raise a child, Matthew argued that his and Rebekah’s “undisputed parental fitness” was an “impermeable barrier” to an order granting grandparent visitation. the court flatly rejected this notion and found that section 3104 “reflects a legitimate state interest in preserving an already existing grandparent-grandchild relationship,” which undoubtedly existed between Riley, Jeff and Cindy. Indeed, the court found that before Matthew blocked visitation, Jeff and Cindy had been intimately involved with Riley’s life. Riley was their “golden granddaughter.”

Depending on how the case is viewed, Stuard may be perceived to infringe on a parent’s fundamental right to child rearing. Those aligned with Matthew’s line of thinking may be concerned that since “undisputed parental fitness” is not per se an “impermeable barrier” to grandparent visitation, a parent’s constitutional right to child-rearing is in jeopardy. Others may praise the court’s “child-centric approach” and strict adherence to the statute, implying that courts should give less weight to the constitutional right reiterated in Troxel and apply a more holistic analysis that considers the changing definition of a family unit. Regardless of what your stance might be, the standard for assessing a potential grandparent visitation case is arguably evolving and all attorneys, whether practicing family law or not, should be cognizant of the possibly expanding rights of third parties and specifically grandparents in the context of visitation. the issue of grandparent visitation is a deeply personal legal concept that can hit close to home for your clients and even yourself, and since this once obscure area of law appears to be more clearly defined, it would be wise to advise your clients impacted by this issue to seek the counsel of an experienced family law attorney to assess his or her case.Lucy Vartanian


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