Nonparental Custody Rights & Troxel vs. Granville by Jon D. Alexander Esq.
My name is Jon D. Alexander Esq. I am an Orange County California Divorce Attorney. This article is the tenth article in a series outlining the divorce process in California. Please be aware that this article is not intended as should not be relied upon as legal advice or as the creation of an attorney client relationship.
Today I'll be explaining the non parental custody rights e. g. Grandparents' custody rights California Family Code Section 3104. Grandparents may only seek visitation during a current marriage if the court finds a preexisting relationship between the grandparent the grandchild that has created such a strong bond that visitation is in the best interests of the child the court balances the interests Grandparent child visitation against the right of the parents to exercise their authority.
Family Code Section 3104 b provides for a grandparent to petition for visitation where 1 mother father are separated 2 mother or father are gone for 1 month their whereabouts are unknown 3 Mom or Dad joins in the petition or 4 child doesn't reside with father or mother.
Family Code Section 3104 e f create rebuttable presumptions that visitation isn't in child's best interests where natural adopted parents do not want visitation or parent with physical custody doesn't want visitation.
Section 3104 has been severally affected by the seminal United States Supreme Court case in this area Troxel v. Granville. In Troxel there was no custody action pending. The grandparents requested visitation. The relevant Washington State statute stated that "any person" could ask for visitation. The test to determine whether visitation should be granted was the best interests of the children test. The parents argued that the statute was unconstitutional.
In Troxel the United States Supreme Court held that the statute in question was in fact unconstitutional. The Court held that the case was about the Parents' ability to make decisions about have ultimate control over their children's affairs. & that it was not about a constitutional right of grandparents to have visitation. The Court held Troxel stands for the proposition that a natural parent has the right to keep everyone else out of their children's affairs. The Court determined there were big problems with the state statute in question. The Court held that the statute was hugely overbroad because it permitted anyone at any time to seek visitation. The statute did not give parents' wishes any special weight. & the statute failed to give consideration to the parents' authorization of some kind of access.
In light of Troxel in order to survive a constitutional challenge a statute that provides others with rights that are against parental wishes will have to have the following elements 1 a requirement that there is prior relationship existing with the child 2 a presumption in favor of parents' views; 3 No burden should be put upon the parent. Other things that may assist the statute in surviving a constitutional challenge a pending custody determination evidence of child abuse harm or detrhyment a history of total denial of contact or visitation by parent.
Non parental visitation cases often encounter the following issues 1 whether the family values include grandparents spending time with grandchildren 2 who is best suited to make decisions regarding the children 3 whether parents are prevented through an Estoppel theory reliance from denying visitation. This means for example say Mom allows a relationship to develop even encourages it then later attempts to rely on Troxel to prevent visitation 4 whether there is harm to the children In sum however Troxel stands for the clear proposition that States may not trample on the rights of parents when it comes to deciding who will will not have visitation rights with their children.
In my next article we will continue with Troxel its impact on California law include some relevant interesting case law. In the meantime if you have any divorce or family law related questions please contact me at your convenience. You can reach me directly at my website linked below or you may email me Jon at oc familylawyers. com.
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