Grandparent Visitation Rights Denied


Family Code, §3102, to Family Code, §3104, provides a statutory framework which significantly expands the provisions for grandparent visitation. These provisions have been greatly limited by federal and California case law, starting with a case called Troxel v. Granville (2000). This case held that a fit parent has a constitutional right to make decisions regarding the care, custody and control of their children.


With this constitutional protection, it is generally required that the grandparent has the burden of proving that a denial of the visitation is not in the best interest of the child. When a fit parent denies visitation to a grandparent, the question then is, what is the burden of proof the grandparent is required to show to overcome this presumption and protection afforded to fit parents? A recent case, Rich v. Thatcher from Ventura, states that to overcome this presumption, it must be shown by “clear and convincing evidence” that the denial of the visitation is not in the child’s best interest, i.e., that denial of the visitation is detrimental to the child. In this case, Mother and Father were never married and the Grandmother was the Father’s mother. Father had monitored visitation rights with his son due to the fact that Mother contended that Father had long-time drug use issues. Grandmother was the monitor for Father’s visitation. Father passed away due to a drug overdose and Grandmother, thus, petitioned the court for visitation rights. The trial court denied Grandmother’s request for visitation. The trial court found that Grandmother did have a relationship with the child but it was not a “deep and abiding relationship” and simply one that was more the result of being the monitor than anything else. The trial court went on to say that there is a rebuttable presumption that a fit parent will act in the best interest of their child and that this presumption can only be rebutted by “clear and convincing evidence”. The trial court noted that the Grandmother did not present any evidence showing Mother was unfit and, thus, did not rebut the presumption that Mother was acting in the best interest when she denied Grandmother’s visitation requests. The court went on to say that even if Grandmother had overcome the presumption by clear and convincing evidence, the court was still not willing to order a visitation plan because the court believed, based on the evidence, that such a visitation plan would be detrimental to the child due to the long standing animosity between the Mother and Grandmother.


On appeal, the court stated that grandparents have an important interest in visiting with a grandchild but that the higher burden of proof was because “the degree of burden of proof applied in a particular situation is an expression of the degree of confidence society wishes to require of the resolution of a question of fact”. In other words, the burden is higher because society wishes to protect a fit parent’s constitutional right to make decisions regarding the care, custody and control of their children. Thus, because Grandmother was unable to prove her case by “clear and convincing” evidence, i.e. evidence “so clear as to leave no substantial doubt”, the appellate court said the trial court’s denial of Grandmother’s visitation request was correct.

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