The leading case governing grandparent visitation and the rights of third parties seeking visitation is the U.S. Supreme Court case of Troxel v. Granville (2000), 530 U.S. 57.

In Troxel, the unmarried parents of two girls stopped living together in 1991. Father moved in with his parents (the Troxels). Understandably, the children visited often with the Troxels when they were visiting with their Father. Father committed suicide in 1993. After Father’s death, Mother limited the children’s visits with the Troxels to one short monthly visit. The Troxels found this limited contact unacceptable and petitioned the Washington trial court for visitation.

Washington’s governing statute was broad and expansive; it allowed any third person to seek visitation if the visitation was in the best interest of the minor. Mother was willing to increase the Troxels’ visitation, but not to the extent they requested. The trial court ordered that the Troxels would have formal and significant visitation with their grandchildren.

The Washington Court Of Appeal reversed holding that third persons have no standing to seek visitation unless a custody proceeding between the parents is already pending. The Washington Supreme Court granted the Troxels’ petition for review and affirmed the ruling of the Court of Appeal, but did so on different grounds than the lower court. The Washington Supreme Court held that, under the Federal Constitution, parents have a fundamental right to rear their children as they see fit and, that absent a showing of harm to the children, the state has no right to substitute its judgment.

The U.S. Supreme Court affirmed. Writing for a splintered majority, Justice O’Connor wrote that parents have a substantive due process fundamental right under the 14th Amendment to solely make the decisions regarding the care, custody and control of their children and, absent a showing of parental unfitness, the state cannot interfere with those decisions. It was irrelevant whether the children would benefit from more time with their grandparents or that such visitation would be in their “best interests” as the state had no right to interfere in the first instance.

In deference to the substantive due process fundamental parental rights (above) and California’s strong policy preference for the rights of parents over non-parents (Familv Code §3040 & §3041), California’s fairly complicated scheme generally requires that, if a custody proceeding is already pending, the non-parent, grandparent, or stepparent, must demonstrate the visitation requested is in the best interest of the minor and that the minor will not suffer detriment if the non-parent visitation request is granted. Under Family Code §3I00, the family law court has discretion to grant “reasonable visitation rights… to any other person [a non-parent] having an interest in the welfare of the child.”

If, however both parents object to visitation by the non-parent, there is a rebuttable presumption (which in practice is very difficult to overcome) affecting the burden of proof that the requested visitation is not in the child’s best interest. (See Family Code §3103(d) and §3104(1).)

California has a separate statute, Family Code §3102, which governs requests for visitation if one parent of the child is deceased. On facts strikingly similar to those in Troxel, in Zasueta v. Zasueta (2002), 102 Cal.App.4th 1242, during the dissolution proceedings, Father committed suicide. Father’s parents petitioned for visitation. Mother opposed the request on grounds that the child (2 years old) was too young, that the child was understandably traumatized by her Father’s suicide, and that the paternal grandparents would discuss the suicide with and in the child’s presence.

The trial judge (who still presides in Kern County as of this time of writing), a grandfather of seven grandchildren. without any evidence to find Mother unfit other than she opposed grandparent visitation, found her unfit on that basis. Then, based solely on the court’s personal beliefs, which the court improperly injected into the proceedings, held it was in the best interests of all children to see their grandparents, stating among other decidedly inappropriate remarks, that it is the job of all grandparents to “spoil their grandchildren.”

The Court of Appeal reversed, holding the trial court’s decision plainly ignored and therefore violated Troxel and violated Mother’s 14th Amendment fundamental right to raise her children, absent unfitness, as she pleases. In conclusion, the Court stated:

“At the very least, Troxel teaches that trial courts must resist the temptation to personalize the proceedings and to substitute personal judgments for the decisions made by fit parents regarding visitation.”

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