Jump To Navigation

What Rights do "Non-Parents" have Regarding Visitation with Unemancipated Child Family Members?

By Frieda Gordon, Esq. and Erin Louria Zivic, Esq.

The issue of visitation can become highly controversial when the parents have had a highlycontested divorce and then one of the parents passes away. In adversarial cases, family membersof the deceased spouse oftentimes will seek a court order granting them visitation with thechildren over the surviving parents objection. Generally, courts will not order such visitationover the surviving parents objection, so long as the surviving parent is operating in the bestinterests of the child. The recent case, Rich v. Thatcher, reaffirms that courts presume that aparent is acting in the best interests of his or her children. In that regard, Court will generallyrespect parents decisions to deny child visitation to non-parents. A non-parent seeking visitationagainst a parents wishes has to prove that denying visitation with the child would be detrimentalto the child.

In the case of Rich v. Thatcher, decided November 14, 2011, the childs paternal grandmothersought a court order granting her visitation with her grandchild after the childs father passedaway. At trial, the Court found that the grandmother provided no evidence to suggest that thechilds mother was an unfit parent or that she was not acting in the best interest of her child. TheCourt also noted the great animosity between the mother and grandmother. The Court held that anon-parent seeking visitation must prove that denying visitation would be detrimental to thechild. Since the grandmother failed to prove that denying visitation would be detrimental to thegrandchild, the Court denied her visitation request.

Nevertheless, the recent case of Hoag v. Diedjomahor gives some hope to family membersseeking visitation and serves as a warning to parents who deny visitation without reason. In thecase of Hoag v. Diedjomahor, decided on October 17, 2011, the childrens maternalgrandmother requested that the court grant visitation with her grandchildren after the childrensmother (the grandmothers daughter) passed away. During trial, the childrens father admittedthat grandparent visitation would be in the childrens best interests and he only objected to thegrandparent visitation to spite the grandmother. Because the father essentially admitted that he was not acting in the childrens best interests, the court granted the grandmothers request forvisitation. The father appealed the trial courts decision.

On appeal, among other issues, the father argued that he was entitled to the presumption that hewas acting in the childrens best interests. The Court of Appeal noted that the trial court wasrequired to operate on the presumption the father was acting in the best interests of the children. This presumption can be overcome however, when as in this case, the father admitted denyingvisitation simply to spite his mother-in-law. The fathers parenting decision was given "specialweight" until he himself revealed that his decision to deny visitation was not based on thechildrens best interests. Thus the order granting visitation was affirmed.

Prior to the Hoag case, the California Court of Appeal ruled on the Herbst v. Swan case whichaddressed the issue of visitation between a parents children and the childrens siblings. In thatcase, like the Hoag case, the Court of Appeal upheld the general rule that the parents wishes arepresumed to be in the childrens best interests and granted "special weight."

The Herbst case reaffirmed the holding in the seminal United States Supreme Court case of Troxel v. Granville, which set the stage for family member visitation. In that case, the Court established that a request for child visitation from a family member will be denied so long as theparty has failed to prove that the parent is not acting in the childrens best interests. In fact,ordering such visitation against a parents wishes is an unconstitutional infringement on theparents right to raise his or her children as he or she so pleases. Even in light of the recentruling in the Hoag case, those who seek nonparent visitation continue to have an uphill battle andwill need to make a strong and detailed argument as to the impact of the loss of the relationshipon the child.