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The Survival of Grandparent's Visitation Rights Upon Termination of a Parent's Parental Rights: Whose Right is It Anyway?

By Frieda Gordon

Currently on appeal in the Second District of the California Court of Appeal is a very interesting and complicated case wherein the paternal grandparents filed actions under Sections 3103 and 3104 of the Family Code for visitation with their granddaughter. During the pendency of that action, their son lost his parental rights and the child was adopted by her step-father. That decision is currently on appeal. The mother appealed the ruling in the family law case on many grounds, but the one key issue to be discussed in this article is whether the termination of parental rights and the subsequent step-parent adoption should terminate the rights of a grandparent who initiated the visitation action prior to either of those events occurring. Furthermore, a sub-issue has been raised by the child's counsel as to whether, even if the court of appeal upholds the trial court's ruling granting visitation to the grandparents, the case should be remanded to review the impact of the subsequent step-parent adoption upon the criteria set forth in the two relevant grandparent visitation statutes.

The two grandparent visitation statutes, Sections 3103 and 3104 of the Family Code, operate independently under different circumstances, but are not inconsistent. Section 3103 allows the grandparents to intervene in a then-existing custody dispute, and states that, "(a) Notwithstanding any other provision of law, in a proceeding described in Section 3021, the court may grant reasonable visitation to a grandparent of a minor child of a party to the proceeding if the court determines that visitation by the grandparent is in the best interest of the child... (d) There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the child's parents agree that the grandparent should not be granted visitation rights." Section 3104 states that, "(a) On petition to the court by a grandparent of a minor child, the court may grant reasonable visitation rights to the grandparent if the court does both of the following: (1) Finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child. (2) Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority. (b) A petition for visitation under this section may not be filed while the natural or adoptive parents are married, unless one or more of the following circumstances exist: (1) The parents are currently living separately and apart on a permanent or indefinite basis. (2) One of the parents has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse. (3) One of the parents joins in the petition with the grandparents. (4) The child is not residing with either parent. At any time that a change of circumstances occurs such that none of these circumstances exist, the parent or parents may move the court to terminate grandparental visitation and the court shall grant the termination. (e) There is a rebuttable presumption that the visitation of a grandparent is not in the best interest of a minor child if the natural or adoptive parents agree that the grandparent should not be granted visitation rights. (f) There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the parent who has been awarded sole legal and physical custody of the child in another proceeding or with whom the child resides if there is currently no operative custody order objects to visitation by the grandparent... "

Whereas Section 3103 mandates the grant of grandparent visitation during the pendency of a family law proceeding upon proof that such an order would be in the best interest of the child, Section 3104 provides for an independent action for grandparent visitation where the grandparents must prove a pre-existing relationship which has engendered a bond such that the visitation would be in the best interest of the child as against the right of the parent or parents to exercise their parental authority and, in the face of any objection from the custodial parent the moving party must prove by clear and convincing evidence that the lack of visitation would be harmful to the child even over the parent's objection. 3104 requires a stronger burden of proof because it grants the right to bring an independent action not associated with a divorce or other custody proceeding in family court. If the Court can find compelling evidence as to why the child would be harmed if the request for visitation is denied, then the trial court's orders must be upheld. Because this is a matter of first impression in California, drafters of the appellate briefs in the matter before our court of appeal have turned to the law in other states. Currently, there are a number of states which have drafted grandparent visitation statutes and most have survived appellate review.

Most states concur that the state has the stronger argument for court intervention when the nuclear family has been dissolved. In Brooks v. Parkerson, 265 Ga. 189, 454 S.E. 2d 769 (1995), the Georgia grandparent visitation rights statute was held unconstitutional. A new statute is now on the books in which a very similar grandparents' "bill of rights" has been enacted, which now provides specifically for a need to show harm to the child in the absence of such visitation. The only provision in the Georgia statute which grants grandparents visitation rights after an adoption is the limited case of the death of a parent and the remarriage of the surviving parent, followed by the adoption of the child by the step-parent. In California there is a separate statute providing for grandparent visitation upon the death of the parent. "In the event either parent of an unemancipated minor child dies, the deceased parent's children, siblings, parents and grandparents may be granted reasonable visitation rights during the child's minority upon a finding visitation would be in the minor child's best interest. [California Family Code Section 3102(a)]. Query whether the legislature should also speak with regard to a similar fact pattern, but where the parent has not died, but rather has involuntarily lost parental rights. It seems clear, considering the cost to the children caught in the crossfire, that they should.

In King v. King, 828 SW2d.630 (Ky. 1992) cert. den., 506 U.S. 941, the High Court rejected a constitutional challenge to the Kansas statute authorizing court-ordered grandparent visitation and recognized the state's interest in protecting its children and assuring that they receive proper care. 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... " Robert v. Ward, 126 N.H. 388, 493A.2d 478,481 (1985).

Ohio addressed the issue of whether the trial Court committed prejudicial error when it allowed a maternal grandfather to continue visitation after a step-parent adoption in Moore v. Strasseo (1998) 101 N.E. 354 (Ohio 4th App. Dist.). In that case, there never had been a marriage, and visitation was granted in March of 1996, four months prior to the adoption of the child on July 18, 1996. The adoption Court made a specific finding that it would be in the best interest of the minor child to have visitation with his maternal grandfather. In the event the adoption would have terminated the grandparent's right to visitation with his grandson, the Court stated that it would have not granted the adoption or would have entertained a Motion to Vacate the Adoption Order. The Ohio statute was narrowly interpreted in Moore to be that, "If a child is born to an unmarried mother, the grandparents may request visitation rights... We also conclude that pursuant to the clear language of R. C. 3107.15, a step-parent adoption does not terminate the relationship between the child and the family of the biological parent whose status is not changed by the adoption." Thus, the applicability of the statute hinged on the marital status of the mother at the time the child was born." In In Re. Adoption of Ridenour, 61 Oh..St.3d 319,325, 574 N.E.2d, 1055,1060 (1991), the Court also held that the local statute R.C. 3107.15 precluded any Court from considering the possibility of post-adoption visitation by biological grandparents following an adoption by a non-relative.

The Indiana appellate court addressed the issue of a grandmother's visitation rights for the child of her son. The Court of Appeals of Indiana held that their local act was rationally related to the legitimate state interest in fostering relationships between grandparents and their grandchildren and therefore, was constitutional and the holding was affirmed denying mother and step-father's petition to dismiss. In Sightes v. Barker, 684 N.E.2d.224 (1997), a grandmother who was the mother of a child's biological father wished to establish grandparent visitation with the child. The mother and her husband moved to dismiss the petition. Similar to the Ohio case cited above, the mother had never married the father of the child and there the step-parent adoption had already taken place. There the Court of Appeals held that the Grandparents Visitation Act did not unconstitutionally burden the parents' autonomous right to raise his or her children, but was rather rationally related to furthering the legitimate state interest in fostering relationships between grandparents and their grandchildren and was therefore constitutional. The common response to these actions challenging the constitutionality of the statutes is that a constitutionally protected right of family autonomy is certainly not absolute because there are many circumstances related to child health and well being in which a state may intervene without violating constitution protections. Under a strict scrutiny analysis, these statutes could be upheld as constitutional because the state has a compelling interest in protecting the welfare of a child which outweighed the rights of parents to raise that child autonomously, provided that the act was not more intrusive than necessary in order to promote that welfare of the child. The Court quoted another Indiana case, Bailey v. Menzees, 542 N.E.2d 1015, 1017 Ind. Ct. App. (1989), which stated quite eloquently: "The 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.'"

In Trent v. Massachusetts 321 U.S.158, 166-167, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944) (reh'g denied) the Court recognized that a "State has a wide range of power for limiting parental freedom" and thus "may restrict the parents control by requiring school attendance, regulating or prohibiting this child labor, and in many other ways." Recently parents have been required by law to see that their children are inoculated against disease, that they are not abused, and that they are restrained when riding in a motor vehicle. Thus over the years, there has been increased legislation guaranteeing the safety, education and physical and emotional welfare of children. In People v. Shepard, 54 N.Y.2d, 320, 445 N.Y.S.2d 420, 429 N.E.2d 1049 (1981), New York's highest Court stated: "In 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.'" citing Meyer v. State of Nebraska, 262 US.390, 403 43.S.Ct. 625,628, 67 L.Ed.1042 , Cleveland Board of Education v. Ruffler, 414 U.S.632,643, 94th S.Ct. 791, 797 39 L.Ed.2d. 52 and Pierce v. Society of Sisters, 268 U.S. 510,535, 45 S.Ct. 571,573, 69 L.Ed. 1070, Shepard, supra." L.Ed..445 S.Ct..2d, at 424, 429 N.E. at 1053. Other cases in which a parent's autonomy over the raising of his or her child was abrogated include Meyer v. State of Nebraska (Id.)., which prohibited teaching of foreign languages in the school to a child who has not yet completed the 8th grade, Toxkie v. Kramer, 455 U.S.745, 102 S.Ct. 1388, 71 L.Ed..2d 599 (1982), which ordered the complete and permanent termination of parental rights, Pyron v. J.R., 442 U.S.584, 99 S.Ct. 2493, 61 L.Ed..2d 101 (1979), which disallowed the commitment of a child by the parent, and the decision concerning what schools children are to attend in Wisconsin v. Yoder, 406 U.S.205, 92 S.Ct., 1526, 32 L.Ed..2d 15 (1972).

Unlike those significant infringement cases, visitation rights by grandparents as defined by the California statutes are less than a substantial encroachment on the parents fundamental rights or the autonomy of the nuclear family. This state's Grandparent Visitation Act contemplates occasional temporary visitation which may only be allowed if the trial court finds visitation to be in the best interest of the child. Grandparents are members of the extended family whom society recognizes as playing an important role in the lives of their grandchildren, some of the importance of which has been given added meaning by the legislative policy underlying the Act. The Act does not presume that grandparent visitation is necessarily in the child's best interest. Instead, it creates a presumption affecting the burden of proof to demonstrate that court-ordered visitation is in the child's best interests. As such, permanent grandparent visitation over the adoptive parents objections does not unconstitutionally impinge on the integrity of the adoptive family. The state must, under the law, determine that under certain circumstances grandparents should have continuing contact with the child's development if it is in the child's best interest, or that, by denying such visitation, the child would suffer substantial harm. Thus it seems clear that protecting the best interests of a child over the objection of a parent and step-parent is unquestionably a proper exercise of the police powers of the State, even if the biological father's rights were terminated during the course of the proceeding.

In Utah, 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). Similarly, Kentucky's King v. King, 828 S.W.2d.630, 632 Ky., (cert. den.) 506 U.S. 941, 113 S.Ct. 378, 121 L.Ed.2d 289 (1992), held that "One 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."

One jurisdiction has recently taken the approach that grandparent visitation may infringe upon a fundamental right. Michael v. Hertzler, 900 P.2d 1, 144 Wy. (1995). The Court in Michael found, however, that their grandparent visitation statutes satisfy the compelling interest and strict scrutiny standard. The Court there noted that a "strict scrutiny is the standard applied when it becomes necessary to balance a fundamental right against a compelling state interest. It requires the establishment of the compelling state interest and the showing that the method of achieving is the least intrusive of those methods by which such can be accomplished. [Id., at 1147]. Applying the strict scrutiny standard to the grandparent visitation statute the Court found the state had a compelling interest in the state's role in protecting the health, safety and welfare for the best interest of the child. [Id., at 1149]. The Court then weighed the compelling state interest against the parent's fundamental liberty rights. In doing so, the Court noted that the parent's right is not "unfettered" [Id.]. The Court reasoned: "A state derives power to adopt regulations for the well being of its citizens from its police power. The police power is the inherent plenary power possessed by a state not only to prevent its citizens from harming one another, but to promote all aspects of public welfare. ... Society clearly condones intrudence upon parental rights which are justified in the face of abuse or neglect. ... The Supreme Court of the United States clearly has recognized that children are 'persons' within the meaning of the Bill of Rights. ... We perceive this interest to be an equivalent fundamental right to that asserted by the parent. It is available to children and grandparents, as well as parents and the state has an equal duty to protect the fundamental rights of the grandparents and the children. ... We conclude that in addition to the compelling state interest attaching to the best interest of the children, the compelling state interest exists in maintaining the right of association of grandparents and grandchildren. The relative interest of the parties, parents, grandparents and children must be balanced and procedural protections or safeguards must be present as the situation demands. We are satisfied that the [Grandparent Visitation Act] contains the appropriate safeguards. While grandparent may bring the action to seek visitation, it cannot be granted until a hearing is conducted to determine if the visitation is in the best interest of the child and the rights of the child's parents are not substantially impaired. ... We are satisfied that the statute is narrowly drawn." (Id., at 1149 to 1151.) The Court concluded by recognizing that the balancing of the fundamental interest of the parents, grandparent and children is not an easy task but that Courts have the ability to fashion orders so that the rights of the parents will not be substantially impaired. Id., at 1151.

The Arizona case of Herreras and Herreras, 159 Az.511, 768 P.2d 673 (1989), took a different approach in denying grandparent visitation because their statute which specifically terminated all visitation rights automatically upon any type of adoption was upheld as constitutional. They held that they must uphold the statute as being rationally related to a legitimate state purpose and does not violate due process. Arizona's statute stands alone. The courts of most states will allow grandparent visitation despite evidence of hostilities between grandparent and parent. In Illinois the attitude of the parents towards grandparent visitation is just one factor for the Court to consider. In In re. Desjardans (California Court of Appeals 4th Dist.) 10 Family Law Report 1229, there were allegations that the grandparents in the past had refused to cooperate, refused to return the child from visitation when he was ill, spoiled the child, obtained dental treatment for the child without the parents permission and showed continuing coldness and hostility to the parents. Even so, despite the statutory presumption and the testimony of the parents, the Court found that the actions of the grandparents did not amount to a serious interference with the parenting functions warranting the denial of grandparent visitation.

The Pennsylvania Superior Court applied a sliding scale approach to determine the burden of proof imposed on grandparent visitations as opposed to custody. Miller v. Miller, 329 Pa. Super. 248, 478 A.2d, 451 (1984). Under the sliding scale approach, the grandparents needed only to convince the Court that it would be in the child's best interest to have access to their companionship to justify a visitation award. In Miller, the Court found that the conflict between the mother and grandparents was not direct, definable or extensive, and the child would not suffer devastating consequences. The Court was hard pressed to find any evidence the child would not benefit from a continuing relationship with her grandparents. Because the visitation schedule involved only short periods of time, the Court concluded that visitation would not interfere with the child's relationship with her mother, and upheld the award of grandparent visitation. The Court stated that "[i]t is in balancing the best interest of the child in maintaining such a relationship, as against the parents' constitutionally protected rights to parent that the state courts and legislatures have permitted grandparent visitation against the wishes of a parent. "Grandparents visitation rights: Is it time for the pendulum to fall?" Edward M. Burns, 25 ABA Family Law Quarterly 59 (1991).

An amendment to Sections 3103 and 3104 of the Family Code is obviously necessary to clear up the ambiguity in the law and avoid costly lawsuits which delay a child's right to have a relationship with the child's grandparents until such time that the relationship may be irreversibly broken.