California Family Law Monthly (Vol. 2016; Issue No. 3)

Blank Rome Partners Stacy Phillips and Kevin Martin provide the following commentaries in the March 2016 edition of California Family Law Monthly.

Court Properly Awarded Visitation to Grandparents Despite Objections of Two Fit Parents

COMMENTARY by Stacy Phillips and Kevin Martin:

Stuard provides important guidance for practitioners representing grandparents seeking visitation rights post dissolution, when both parents seek to prevent such visitation.

Troxel v. Granville (2000) 530 U.S. 57 was a game changer, striking down as unconstitutional a Washington statute that permitted a court to award non-parents visitation rights over a parent's objections whenever the court determined that such visitation served the child's best interests. The Troxel court found that parents had a Fourteenth Amendment substantive due process right to make decisions concerning the care, custody and control of their children, and held that any state law that infringed upon that right based only on the ''best interest'' of the child was unconstitutional. Under Troxel, the trial court was required to give ''presumptive validity'' or ''special weight'' to the parent's decision that non-parental visitation was not in the child's best interest. Troxel seemed to render irrelevant a judge's belief that a child's best interest would be served by granting a non-parent visitation, when such visitation was opposed by a fit parent. The Supreme Court did not formulate any constitutional standard for determining when non-parental visitation rights should be afforded.

Post Troxel, practitioners representing grandparents who wished to maintain a relationship with their grandchildren faced an uphill battle, to say the least. As practitioners, we thought that getting grandparent visitation when the parents or the sole custodial parent objected was virtually impossible, requiring a showing that the parents were ''unfit.'' Indeed, that seemed to be how our courts reacted.

The legal landscape for grandparents changed with In Re Marriage of Harris (2004) 34 Cal. 4th 210 when the California Supreme Court distinguished Family Code section 3104 from the Washington statute at issue in Troxel. The Court explained that ''under the statutory scheme in question, the Legislature expressly requires the trial court to '[b]alance[] the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.' (§ 3104, subd. (a)(2).) Guided judicial discretion regarding this factor protect[s] children against the arbitrary exercise of parental authority that is not in fact motivated by an interest in the welfare of the child.'' Harris also held that ''[g]iving the parent's determination 'special weight' is different than insulating the parent's determination from any court intervention whatsoever. Troxel does not support defendant's suggestion that a fit parent's decisions are immune from judicial review.'' Thus, Harris created an opening for grandparents to obtain visitation privileges (although a long shot) even in situations where there are no allegations of unfitness -- which leads us back to Stuard.

The Stuard discussion will be very helpful for us in framing the issues and letting our clients know that obtaining visitation is no longer virtually impossible, although it is still difficult. The fact pattern in Stuard is typical of the fact patterns that come through our office. In Stuard, there were no allegations that Riley's parents were unfit. Instead, it appears that Riley was denied access to her grandparents because her father's relationship with them soured. Analyzing Stuard under the lens of Family Code § 3104 and Harris, the Court of Appeal ruled that, notwithstanding the absence of allegations of parental unfitness, the visitation order was appropriate in light of Riley's strong bond with her grandparents, which developed as a result of the substantial amount of time that Riley spent with them. In the Court of Appeal's words, ''[w]hile Matthew and Rebekah have broad parenting prerogatives, they are not unlimited and do not extend to denying Riley's best interest in preserving an important and continuing relationship with her paternal grandparents.''

Riley was lucky enough to have an extremely close relationship with her grandparents. Would the Court of Appeal have ruled differently if the amount of contact between Riley and her grandparents were more limited - 10 times a month, every other Sunday, etc.? What if Riley visited with her grandparents only one time per month, but spoke to them at least one time per week? Under these circumstances, balancing a parent's prerogative against the child's need for a continuing relationship with grandparents is not so clear. While no visitation may be ordered when there is no preexisting relationship between grandparent and grandchild, it is unclear at what point a parent's fundamental right to parent is trumped by a grandchild's need for a continuing relationship with his or her grandparents. That is left to the court's discretion.

Due Process Required Court to Conduct Evidentiary Hearing on Mother's Claim that Child Would Face Grave Risk of Harm if She Returned to Denmark

Highlight: The appeals court reversed an order granting a father's petition under the Hague Convention on the Civil Aspects of International Child Abduction (Convention or Hague Convention) and returning the child to the father's custody in Denmark, when the court failed to conduct an evidentiary hearing on the mother's claim that the child would face a grave risk of physical and psychological harm if she were returned.

COMMENTARY by Stacy D. Phillips and Kevin Martin:

William Gladstone's famous statement, ''justice delayed is justice denied,'' fits this case like a glove. Like the Court of Appeal in Noergaard, we were shocked that the trial court failed to undertake an evidentiary hearing in the face of Mother's allegations of abuse and the ''grave risk'' her child would face if returned to Denmark. While the Court of Appeal's decision to reverse and order the necessary evidentiary hearing is the right one, it is two years after the fact and may be too little too late for the 11-year-old girl whose life was potentially put in jeopardy.

International child custody cases are undeniably complex and frequently involve allegations of child abuse. Because actions under the Hague Convention are designed to be expeditious, there is no requirement that a full evidentiary hearing be conducted, even when allegations of ''grave risk'' or ''abuse'' are at issue. Thus, notwithstanding the fact that a ''grave risk'' of harm in the country of habitual residence is a defense to return under the Hague Convention, it is in the trial court's discretion whether to conduct a full evidentiary hearing on the abuse allegations.

The Court of Appeal's decision in Noergaard is precedent setting in that it sets a bright line rule requiring an evidentiary hearing when allegations are made that a child faces ''grave risk'' of harm if returned to their habitual residence outside the United States. If, after an evidentiary hearing, a Court finds by clear and convincing evidence that returning a child to his or her habitual residence outside the United States exposes the child to a ''grave risk'' of harm, the court is precluded from ordering the child's return.

In our opinion, the Noergaard decision is clearly correct and is consistent with how our family courts in non-international cases handle allegations of abuse. The Court of Appeal made it crystal clear that while the Hague standard is narrower than the ''best interest'' standard in typical custody proceedings, once allegations of psychological, sexual, or physical harm are made, ''all bets are off'' and a California court is required to conduct an evidentiary hearing to determine if returning a child to their habitual residence poses a ''grave risk'' precluding the child's return.'' This was no surprise to us, as an evidentiary hearing is mandatory when there are allegations of domestic violence or abuse. That is also the case in a child custody dispute. Kudos to the Court of Appeal for pulling together and applying what we hold dear in California. Unfortunately, as the Court of Appeal stated in the last paragraph of the decision, the two years lost may moot their very wise decision.

Reprinted from California Family Law Monthly with permission. Copyright 2016 Matthew Bender & Company, Inc., a LexisNexis company. All rights reserved.