Grandparent Seeking Visitation Must Satisfy Clear and Convincing Burden of Proof

Rich v. Thatcher (2011 DJDAR 16570), 2nd App. Dist., November 14, 2011

Family Code § 3102: Grandparent Seeking Visitation Must Satisfy Clear and Convincing Burden of Proof To Overcome Rebuttable Presumption

Mother gave birth to child in 2006, and Father filed Petition to Establish Parental Relationship in 2010.  Father died in 2010, and Grandmother filed a Petition for Joinder which the trial court granted.  Obviously, Mother and Grandmother “do not get along.” After an evidentiary hearing on Grandmother’s visitation request, the trial court found (1) that Grandmother failed to provide clear and convincing evidence to overcome rebuttable presumption that a fit parent will act in the best interests of the child, and alternatively (2) that granting visitation to Grandmother would not be in best interests of child even if presumption were overcome.  The trial court denied Grandmother’s visitation request and the Court of Appeal affirmed.

The Court of Appeal ruled that the rebuttable presumption required by IRMO W., (2003) 114 Cal.App. 4th 68, and others of its like, “in favor of a fit surviving parent’s decision that grandparent visitation would not be in the best interest of the child” can only be overcome by clear and convincing evidence and not just a mere preponderance.  Partially relying on IRMO Gayden, (1991) 229 Cal.App. 3d 1510, 1517-1520 (where the court considered the evidentiary standard applicable to a custody award to a nonparent under what is now Family Code § 3100), and also Justice Chin’s opinions in IRMO Harris, (2004) 34 Cal.4th 210 (higher burden needed to promote a parent’s constitutionally protected first choice), the Court of Appeal found that the “higher degree of the burden of proof . . . demonstrates that there is a preference in favor of the presumably correct choice of a fit sole surviving parent.”  Grandmother failed to prove denial of visitation would be detrimental.

Again, the sole surviving parent has the first choice against Grandparents just as “[t]he custody, care and nurture of the child reside first in the parents whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Troxel v. Granville (2000) 530 U.S. 57, 65-66.