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Brief of Amicus Curiae, Butler v. Harris, Appellate Case No. D 036 144, Fourth Appellate District, Division One





Appellate Case No. D036144
San Diego County Superior Court Case No. D391902
The Honorable Thomas Ashworth III, Judge


For the Association of Certified Family Law Specialists:

David Borges, President, Bar No. 94781

Lorraine C. Gollub, Bar No. 4388
Law Offices of Gollub & Golsan

Frieda Gordon, Bar No. 115780
Cooper-Gordon LLP

Dawn Gray, Bar No. 112483



The Association of Certified Family Law Specialists (ACFLS) is a non-profit statewide association of approximately 500 attorneys who have been certified as Family Law Specialists by the State Bar of California Board of Legal Specialization. ACFLS was formed in 1980 following the certification of the first group of Family Law Specialists in California. The Association monitors issues of interest to Family Law Specialists, including legislation, court rules, and the State Bar Legal Specialization Program. ACFLS develops and promotes family law practice skills and provides advanced educational programs for the bar and judiciary. Its members also appear in all courts throughout California and have appeared as amicus curiae in the appellate courts previously, including in several recently reported cases such as In re Marriage of Buzzanca (1998) 61 Cal.App.4th 1410, 72 Cal.Rptr.2d 280, Dale v. Dale (1998) 66 Cal.App.4th 1172, 78 Cal.Rptr.2d 513, and In re Marriage of Scheppers (2001) Court of Appeal No. EO25054.

The ACFLS, as an amicus curiae, submits this brief in response to the CourtÍs order inviting the ACFLS to address the question: "Where there are no allegations of unfitness of the custodial parent and the custodial parent objects to grandparent visitation, does the best interest standard set forth in Family Code Section 3104 comport with the constitutional rights of due process and privacy provided by the United States and California constitutions?"

Because the issue pending in this case does not directly affect the ACFLS as an organization and because the ACFLS is a non-political organization whose members have diverse views on various political and legal issues, and the mission of ACFLS is primarily educational in nature, this brief is organized as a discussion and analysis of the issue upon which the court invited briefing, and is intended to assist the court in the analysis of the issue, not to advocate for any particular outcome with respect to the parties.

This Honorable Court is encouraged above all else to consider the minor child's constitutional rights in the context of determining her best interests. This court is the protector of the constitutional rights of all individuals, and should not limit itself only to determining the rights of competent parents vis a vis other adults seeking transgenerational custodial or visitation rights. In order to preserve both the rights of the competing adults and the rights of the minor child, the court must use a balancing test which will allow enough judicial discretion to weigh the child's best interests against each other interested party's State and Federal due process rights.

By limiting trial courts to a standard of harm, it will essentially be taking away all judicial discretion, as the necessity of making a threshold showing of harm to the child without it before grandparent visitation may be ordered defeats the court's opportunity to resolve the tension between the parental constitutional rights of privacy and association and the grandparents' and children's own constitutional rights of privacy and association. When children are placed in the center of litigation involving their care and custody, it is prima facie harmful to them. Because the California grandparent visitation statutes, as set forth below, presume that it is not in the child's best interest to award visitation to grandparents over the objection of the child's fit custodial parent(s), neither statute is unconstitutional either on face or in its application. In addition, the statutes permit the trial court to be the gatekeeper, and to balance those various rights, in situations in which the parent may not be sufficiently objective to act in his or her child's best interest.



Claimants, CHARLES HARRIS, JR. and LEANNE HARRIS, are the paternal grandparents of EMILY HARRIS, the child at issue in these proceedings. Petitioner and Respondent were divorced on September 28, 1995, and their judgment awarded Petitioner sole legal and physical custody of EMILY. Claimants were joined to the proceedings by stipulated order on July 21, 1995, which permitted Petitioner to relocate with EMILY to Maryland. Claimants consistently pursued visitation with EMILY; the first order permitting visitation was by stipulation, and permitted four week-long visits in 1996, six in 1997 and six ten-day visits beginning in 1998. Respondent father is not a participating parent.

Petitioner moved to terminate Claimants' visitation rights; the trial court denied the motion to terminate visitation but decreased visitation to a maximum of four 7-day visits per year. In January of 1998, Petitioner was found guilty of two counts of contempt for violating this reduced visitation order during the period from December of 1996 through 1997. Thereafter, she moved to Brigham City, Utah and, in April 1998, the trial court modified the visitation order to require visits to occur within a 50-mile radius of petitioner's home. In May of 1999, the court again modified the order, pursuant to both a stipulation and the recommendation of Family Court Services. The amended order permitted the visits to occur in California, with either a grandparent or another adult familiar to the child to travel with her. Claimants have exercised substantially all of the visitation available to them, seeing EMILY for at least a week at a time every three to four months. Their relationship has developed accordingly.

The order from which this appeal is taken resulted from Claimant's Order to Show Cause to clarify their visitation rights considering EMILY's school schedule. In response, Petitioner requested that the trial court terminate grandparent visitation altogether, claiming that the court has no ability to order such visitation over her objection, as the child's custodial parent with sole legal and physical custody, absent a determination that she is unfit. The trial court granted Claimant's motion, and modified the visitation order to account for EMILY's school schedule, and to begin "fly-alone" visits in December of 2001. Petitioner has appealed from this order.



The threshold issue is whether or not a California trial court has the discretion to override the desires of a fit parent under any circumstance as to with whom a child may visit. If the court has no discretion under any circumstances to substitute its judgment on behalf of the child for the parent's decision, Appellant prevails, because the trial court must have ruled erroneously by permitting visitation. On the other hand, if the court has such discretion, the issues become i) under what circumstances it may do so, ii) what is the test it must use in determining whether to exercise its discretion, and finally, iii) whether or not it abused that discretion in this case. It appears that California law does, in rare situations, permit a trial court, acting on behalf of the child and guided solely by the child's best interest, to override the actions of a fit parent as to who may visit with the child, so long as it balances the competing due process and privacy rights of the parents, grandparents and the child.

In this case, the parties have extensively briefed the legal precedent which supports the rights of the respective party. Amicus is concerned that neither have focused on the child's rights, and that this lack of attention to the person at the core of this dispute is prima facie evidence that their interests and hers are not coextensive. Who speaks for the child? Only the court. Therefore, this brief focuses on policy concerns relative to the child's rights.

1. The Various Standards at Issue

A. The best interest standard

    1. Family
    2. Code §§3103 and 3104 grant grandparent visitation either during the pendency of a family law proceeding or by an independent petition if the court determines that such an order would be in the best interest of a child.
    3. Family
    4. Family

By its terms, the statutory presumptions are rebuttable. Therefore, California has left open the possibility that the court could find facts sufficient to rebut the presumption, and permits the trial court to order grandparent visitation over the objection of the child's fit parent, if consistent with the child's best interests.

B. Protection of federal and state constitutional rights

The United States Constitution, in Article I, Section 1, states that "(a)ll people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy." Equal protection requires that this section apply to children as well as adults. The California Constitution, Article I, Section 7, states, in relevant part, that "(a) person may not be deprived of life, liberty, or property without due process of law or denied equal protection of the laws... " It is important to note that each participant in this proceeding the parents, including the child whose interests are at stake, have constitutional rights to due process of law.

The parties, and the child, also have a right to privacy and familial association and the child clearly has an interest in preserving a trans-generational familial relationship over the objection of a fit parent, an issue not discussed by either Respondent or Appellant. The legal system has established the courts to be the protector for the child's rights where the interests of a parent and child conflict. The question of whether a child has the right to know and associate with her extended family and whether this is a fundamental right independent of her parent's right to decide what is best for her has been addressed by the lower courts of many states, but was specifically left for another day by the United States Supreme Court in Trowel v. Granville (2000) 530 U.S. 57, 120 S.Ct.2054 (herafter, Troxel). In fact, Troxel pointed to the California statutes as a model for how a state court should balance those competing interests. Furthermore, in the recently published decision Punsly v. Ho (3-16-01) DO36025 (Fourth Appellate District, Division One), Troxel was discussed, but the child's right of privacy and to familial association was not.

In the very recent relocation case of Williams v. Williams (4-26-01) B145636 (Second Appellate District, Division Six), the court stated in its discussion concerning keeping siblings together that it is the declared public policy of this state that siblings be placed in foster care together "to maintain the continuity of the family unit and ensure the preservation and strengthening of the child's family ties... " The court also stated that "children are not community property to be divided equally for the benefit of their parents. The parents of these children have chosen to divorce from each other. The children have not chosen to divorce from each other." Nor have they chosen to divorce from their relationships with their extended family. In custody and visitation matters, California permits an evidentiary hearing using psychological evaluations of the children, parents and other significant adults, school and medical records, and input from the children. The child's right to familial relationships has been an integral part of the thoughtful consideration of the courts and the legislature for many years, and the tools are all in place for the court to consider all evidence bearing on what is in the child's best interests.

C. Substituted Judgment

If the child's rights are to be considered, someone other than the child's custodial parent must be permitted to act on the child's behalf; where a court determines that an otherwise fit parent is not doing so, and a fit parent cannot always be presumed to be doing so. Troxel, supra, states that there is a presumption that a fit parent is acting in the child's best interests, but it is not a conclusive presumption. Therefore, the court, which has been charged on certain occasions with the affirmative duty to substitute its judgment for that of a custodial parent as guardian of the child's best interests, has an obligation to protect those interests by permitting visitation if it deems that doing so serves those interests, even over the objections of an otherwise fit parent. California courts have a long history of acting in loco parentis. "Non-adversary in substance, the juvenile system is designed to place the state in the status of in loco parentis. Its underlying philosophy is that the state assumes a protective role with respect to the juveniles over whom it gains jurisdiction." People v. Reyes (1998) 19 Cal.4th 743, 80 Cal.Rptr.2d 734.

California family courts are required to evaluate custody and visitation issues according to the child's best interests. Family Code §3020(a) states, in relevant part, that "(t)he Legislature finds and declares that it is the public policy of this state to assure that the health, safety, and welfare of children shall be the court's primary concern in determining the best interest of children when making any orders regarding the physical or legal custody or visitation of children." §3021 states that those findings apply in various types of family law actions involving children, and the grandparent visitation statute at issue her - §3103 - authorizes a request for grandparent visitation within one of the types of cases described in §3021. The statement of public policy in §3020(a) applies here, and the court is bound to carry it out. It can only do so if it's discretion to make an order in the child's best interest is not circumscribed by a fit parent's wishes to the contrary.

2. How Conflicts Between These Rights Have Been Resolved

A. California provides various court services
California courts provide authority for the trial courts to appoint counsel for minors pursuant to Family Code §3150 et seq., child custody evaluations under Family Code §§3110.5 and 3111, Evidence Code §730 evaluations and mediation pursuant to Family Code §3160 et seq. The courts are also approving stipulations for special masters. Furthermore, the legislators have recently expanded administrative services which assist pro per litigants in litigating issues pertaining to child welfare, especially support. Most importantly, many bench officers are being educated in family law and child development and are concerned in recognizing variances in this difficult area of law where the needs of the parties and the children are usually flowing. The California court system has struggled with balancing the parties' rights, and developed mechanisms to increase access to the courts. This access must mean access for children's rights as well.

1) Court Attention
The court needs time and opportunity to give each case full attention. The trial court needs the time and the opportunity to review expert testimony, evidence of contact and the relationship between the parties, evidence of prior attempted contact and real attempts at avoiding conflict. It is the present culture of California and elsewhere in our nation to restructure the family units and relationships. This case is an example of parental determination to start a new life and create a successor family unit and closing out the prior unit. The new family relationship may be necessary and valuable to the parents and to the children of the new units but it may also actually leave a child bereft of familial relationships. Therefore, it is even more important that the trial court be able to fully exercise its discretion to act on behalf of such children, who often have no voice in these changes, to be sure that familial relationships with stable adults be protected, for the benefit of the child.

2) Other States
Many other states have addressed in various scenarios the conflict between a child's state and federal rights and the desires of a fit parent which may conflict with those rights. Some examples follow. In Prince v. Massachusetts (1944) 321 U.S. 158, 166-167, 64 S.Ct. 438, the United States Supreme Court recognized that "the state has a wide range of power for limiting parental freedom and authority in things affecting the child's welfare... ." It said that

"(t)he state's authority over children's activities is broader than over like actions of adults. ... A democratic society rests, for its continuance, upon the healthy, well-rounded growth of young people into full maturity as citizens, with all that implies. It may secure this against impeding restraints and dangers, within a broad range of selection. Among evils most appropriate for such action are the crippling effects of child employment, more especially in public places, and the possible harms arising from other activities subject to all the diverse influences of the street. It is too late now to doubt that legislation appropriately designed to reach such evils is within the state's police power, whether against the parents claim to control of the child or one that religious scruples dictate contrary action."

In People v. Shepard (1981) 429 N.W.2d 1049, New York's highest court stated that "(i)n determining whether a state's interference with the family relationship is proper, the action will not be reviewed under exacting scrutiny, but according to a less rigorous standard of whether there is a 'reasonable relation to any state purpose and within the constancy of the state.'" The court cited Meyer v. State of Nebraska (1923) 262 U.S. 390, 43 S.Ct. 625, Cleveland Board of Education v. LaFleur (1974) 414 U.S. 632, 94 S.Ct. 791, and Pierce v. Society of Sisters (1925) 268 U.S. 510, 535, 45 S.Ct. 571. In Utah, the state of Appellant's residence, the Appellate Court summarized its policy regarding a similar act as follows:

"[M]odern society has witnessed a general trend towards disintegration of the nuclear family. Changes in the demographics of domestic relations, the rise in the divorce rate, and the increasing number of children born to single parents are but a few of the factors contributing to the destabilization of the traditional nuclear family. Given such circumstances, it is not unreasonable for our legislature to attempt to strengthen into generational ties of an alternative or supplementary source of family support of the children." Campbell v. Campbell 896 P.2d, 635, 643 (Ut. Ct. App., 1995).

Kentucky's similar case on the subject, King v. King (1992) 828 S.W.2d.630, held that "(o)ne of the main purposes of the [grandparents' visitation] statute is to prevent a family quarrel of little significance to disrupt a relationship which should be encouraged rather than destroyed... It is not unreasonable for the state to say that the development of a loving relationship between family members is desirable and the arbitrariness of the statute is obviated by the requirement that visitation be granted by a Court only after finding that is in the best interest of the child." The Court concluded that, "The parents' rights are subordinate to the state's plenary powers and must yield when adverse to the best interest of the child." The Supreme Court of New Hampshire summarized the situation as follows:

"Parental autonomy is grounded in the assumption that natural parents raise their own children in nuclear families, consisting of a married couple and their children. The realities of modern living, however, demonstrate that the validity of the Court on absolute judicial difference to parental rights become less compelling as the foundation upon which they are premised, the traditional nuclear family, has eroded. More varied and complicated family situations arise as divorces, and decisions not to marry, result in single family parent families; as remarriages create step-families; as parents abandon their children; as others give them to temporary caretakers; and as still others are judged unfit to raise their own children. One of the frequent consequences, for children, of the decline of the traditional nuclear family is the formation of close personal attachment between them and adults outside of their immediate family. It is short sighted indeed for this Court not to recognize the realities and complexities of modern family life, that holding today that a child has no rights, over the objections of the parent, to maintain a close extra-parental relationship... " Roberts v. Ward (1985) 493A.2d 478, 481.

Finally, in an Indiana case, Bailey v. Menzie (1989) 542 N.E.2d 1015, 1017, the court stated quite eloquently that "(t)he Legislature has obviously chosen to alter its course in family law. No longer can we employ, as we once were so fond of doing, that botanical analogy between the consequences of an adoption and tree surgery to the effect that 'a decree of adoption severs the child from his own family tree and engrafts it upon that of another."

Clearly, many sister states have struggled with the issues involving changing familial patterns and the competing rights of parties who are more willing than ever to submit their disputes to the courts. These cases indicate an emerging trend toward permitting court "intrusion" in the familial realm when necessary to protect the best interests of children. Cases decided earlier in the last century were based on a strong public policy of familial solidarity and paternalism which has been significantly eroded in the past 20 years. It appears from a review of cases that most states concur that the state has the stronger argument for court intervention when the nuclear family has been dissolved. There are now many areas in which the courts will intervene in families, particularly families which are no longer (or never were) "intact," and recognize the increasing importance of the child's rights.

B.Does Troxel compel a different conclusion?

The trial court and the parties have spent considerable time debating whether or not Troxel, supra, applies to this case, and if so, how it affects the result vis-a-vis the California grandparent visitation statutes. It is the opinion of Amicus that Troxel did not bind the trial court in this case, and that the California statutes do not suffer from the same defect which caused a divided U. S. Supreme Court to strike down the Washington grandparent visitation statute.

The reason that parties come into court is to have an "impartial" third party make a decision which they have been unable to make, in accordance with laws and principles which we, as a society, have developed. Sister states have recognized that this struggle is not easy, but that the courts must have the right to determine a child's best interests, even over the expressed contrary desires of a fit parent.

The Troxel majority describes the Washington statutes as "breathtakingly broad;" it provides that "(a)ny person may petition the court for visitation rights at any time including, but not limited to, custody proceedings. The court may order visitation rights for any person when visitation may service the best interests of the child whether or not there has been any change of circumstances." This statute is much broader than Family Code §§3103 and 3104; in fact, §3104(e) states a rebuttable presumption that grandparent visitation is not in the child's best interests "if the natural or adoptive parents agree that the grandparent should not be granted visitation rights." The majority found that the defect in the Washington statute was both in its breadth and its application; it criticized the Washington trial court for effectively imposing a presumption favoring grandparent visitation. "In effect," said the majority, "it placed on [M] the burden of disproving that visitation would be in her daughters' best interest and thus failed to provide any protection for her fundamental right." Troxel, at 58 (emphasis in original).

The actual holding of Troxel was that the Washington statute, "as applied to Granville and her family in this case, unconstitutionally infringes on [her] fundamental parental right [to make decisions concerning the care, custody and control of her children]." The majority go on to observe that "(o)nce the visitation petition has been filed in court and the matter is placed before a judge, a parent's decision that visitation would not be in the child's best interest is accorded no deference. Section 26.10.160(3) contains no requirement that a court accord the parent's decision any presumption of validity or any weight whatsoever." The same cannot be said of the California grandparent visitation statutes; a court following the Family Code would err by imposing such a burden on a parent as such an order would violate the express requirement of the statutes.

The majority noted that "(t)here is a presumption that fit parents act in their children's best interests." It also said that "(t)he decisional framework employed by the Superior Court directly contravened" this presumption. Obviously, however, that is not a conclusive presumption, or the court surely would have said so. If there is room for a party to overcome this presumption, them the answer to the threshold question - whether or not a California trial court has the discretion to override the desires of a fit parent under any circumstance as to with whom a child may visit - has to be "yes." According to Troxel, a statutory scheme which gives due weight to the parent's fundamental liberty interest in making decisions about her child and places the burden on parties other than the fit parent to overcome this presumption, that scheme will pass constitutional muster. California's statutes meet this test.

Punsley, supra, does not compel a different result either. Punsley, of course, was dealing with Family Code §3102, which is not at issue in this case. The opinion also stated that "(w)e construe Troxel's emphasis on a parent's voluntary efforts for visitation to mean that before a court may intervene, the parent must be given an opportunity to voluntarily negotiate a visitation plan." The problem in Punsley, according to the opinion, was that the trial court failed to do this.. Punsley noted that "a report by [C's] counsel stated [M] expressed no desire that [C] not see her grandparents nor did she discount the value such contact could have for [C]." Here, that is not an issue; Appellant desires to terminate contact between the child and her paternal grandparents, after years of frequent visits between them. If there are circumstances where "a court may intervene," this may be one of them.

In a footnote to his dissent in Troxel, Justice Stevens notes that "This Court has on numerous occasions acknowledged that children are in many circumstances possessed of constitutionally protected rights and liberties." This brief is intended to emphasize that the court should consider those rights, so that they don't get lost in the midst of the interests of the other competing parties. Neither party in this case addressed those rights and liberties; the Family Code clearly empowers the trial court to consider them at the trial level, and this court should take them into consideration when deciding this case. //



The threshold test with regard to grandparent visitation rights should not be the child's best interest versus the parent's right of privacy, but rather how the government's compelling interest in protecting the child's inalienable right to maintain fundamental familial relationships can be balanced against the parent's right to privacy. Can the grandparents' right to association with their grandchildren override the parent's right of privacy so that the Court may ever order the grandparent visitation over the objections of a fit parent? The answer is "yes." The trial court may substitute its judgment for that of an otherwise fit parent as long as the trial court considers the rights of all parties, including the minor child, and weighs all of those interests against what it considers to be the best interests of the child. Because the trial court is in the best position to monitor the needs of the family as a child grows, and California's grandparent visitation statutes give the court discretion to balance the competing rights against the child's best interests at all stages of development, the statutes do meet the constitutional standard. The child's right to privacy and right of association must be given equal weight alongside the considerations of the adults' rights in the action. By factoring in all the evidence in each individual case and balancing the child's best interests against the trio of parties clamoring for superiority with regard to their constitutional rights, an order may be fashioned so that, at least as to future considerations, even if no visitation is ordered at the present, the relationship between the child in the instant case and her grandparents may in some way be preserved.