Grandparent's Visitation Rights - Recent Harris Case

see In re Marriage of Harris - click here

Court Backs Rights of Grandparents
With proof that no harm would result, visits with grandchild may be allowed over a custodial parent's objection, the state's top jurists rule.

By Maura Dolan, Times Staff Writer 8/24/04

SAN FRANCISCO — Grandparents may be given visitation rights to see their grandchildren even if the parent with custody objects, the California Supreme Court ruled 4 to 3 Monday.

In the decision, the state high court upheld the constitutionality of California's grandparent visitation law but placed the legal burden on grandparents to prove that such visits would not harm the grandchild.

Monday's ruling overturned a lower court's decision that found grandparent visitation orders violated a mother's constitutional right to care for her child as she saw best. That reasoning, rejected Monday, reflected a recent trend nationwide in which appellate courts have rejected similar grandparent visitation laws as unconstitutional.

Justice Ming Chin, one of the three dissenters, complained that court-ordered visitation by grandparents infringes on a custodial parent's right to direct the child's upbringing.

"I am not insensitive to the tremendous hurt most grandparents feel [when] they are cut off from their grandchildren," Chin wrote. But "family privacy is grounded on the right of parents to rear their children without unwarranted state interference."

The ruling stemmed from a dispute between Karen Butler, who now lives in Utah and has sole custody of her daughter, Emily, 9, and Emily's paternal grandparents, Leanne and Charles Harris.

Butler and Emily's father split up before their daughter was born, and courts permitted him only supervised visitation. Butler claimed that her former husband had physically abused her. She said he was violent and had threatened to take Emily, and she feared that his parents would not be able to protect Emily from him.

The grandparents nevertheless obtained court orders giving them several weeks a year with Emily, who visits her grandparents in California three times a year.

Jeffrey W. Doeringer, who represented the mother in the case, said he was "greatly disturbed" by Monday's ruling.

"It is going to make parents more subject to attack by grandparents and create much more litigation," Doeringer said.

The ruling isn't an automatic guarantee that grandparents can see their grandchildren, however. Paul W. Leehey, who represented the Harrises, said grandparents would "need significant evidence to show that a child should be seeing them."

Emily has been visiting her paternal grandparents for 30 days each year over the last several years.

"We love Emily, and we have a great relationship with her and she enjoys being here," said Leanne Harris, 57, of her only grandchild.

Harris, who owns a pet grooming salon and retail shop in Fallbrook in San Diego County, said she was pleased that the state high court found the visitation law constitutional but disappointed that she and her husband would have to return to the trial court to win visitation again under the rules established in Monday's decision.

Justice Carlos R. Moreno, writing for the court majority, distinguished California's grandparent visitation law from a similar Washington law that the U.S. Supreme Court struck down in 2000. That ruling prompted several state high courts to reject grandparent visitation laws.

Unlike the Washington law, the California law gives " 'special weight' to the parents' decision if the parents agree that visitation is not in their child's best interest, or to the decision of a parent who has been awarded sole custody of the child," Moreno wrote.

If the custodial parent opposes visitation, the grandparents must overcome a legal presumption that continued visits are not in the child's interests, he wrote.

Moreno noted that Emily's father supported her visits with his parents. He said no court has ever ruled that "grandparent visitation that is supported by one of the parents infringes upon the parental rights of the other parent."

In a separate opinion, Justice Marvin Baxter complained that the majority decision was "bereft of legal authority" and "far broader" than what was necessary to decide the case.

"Under the majority's approach, a custodial parent would have no constitutional protection whatsoever if a state overrode that parent's objections and forced his or her child to go on visits with any third party — even complete strangers … as long as the noncustodial parent acquiesced in the court order," Baxter complained.

Justice Janice Rogers Brown also criticized the majority's ruling as overbroad.

She expressed concerns that parents would now encounter "unwarranted judicial intrusion in their private lives" and "significant costs in seemingly unending litigation."

Monday's ruling overturned a lower court's decision that found grandparent visitation orders violated a mother's constitutional right to care for her child as she saw best. That reasoning, rejected Monday, reflected a recent trend nationwide in which appellate courts have rejected similar grandparent visitation laws as unconstitutional.

The ruling stemmed from a dispute between Karen Butler, who now lives in Utah and has sole custody ...

August 25, 2004

FALLBROOK – On her trips to California to visit her grandparents, 9-year-old Emily Harris falls into a comfortable routine.

She and Grandpa go to the beach at Camp Pendleton, then to the commissary to buy the ingredients for the meals they plan and cook together. She sleeps in her own room, where a collection of toys and clothes await her.

"We do whatever it is Miss Emily wants to do," grandmother Leanne Harris said yesterday.

For as long as she can remember, Emily has had special visits with her paternal grandparents. All the while, her grandmother and grandfather have been fighting a legal battle with Emily's mother in Utah to keep it that way.

Their struggle went all the way to the California Supreme Court, which on Monday ruled that grandparents may be granted visitation rights to their grandchildren – even if the parent with custody of the child objects.

The 4-3 ruling overturned a 2001 San Diego County appeals court decision that grandparent visitation orders violated a parent's constitutional right to raise a child as the parent sees fit.

The Supreme Court ruling upholds the state's grandparent visitation laws but places responsibility on the grandparents to prove the visits would not harm the child.

Leanne Harris said she and her husband, Charles, who yesterday was ocean-fishing with Emily's father, were excited about the decision. She said it would pave the way for other grandparents who want visits with their grandchildren.

"But the most important thing is we love our granddaughter very much," she said.

Leanne Harris owns a dog-grooming salon and on the side assigns hundreds of referees to officiate at youth soccer games around the county. Her husband, whom family and friends call Chuck, is retired from the Marine Corps.

Love is what kept the Harrises going through the eight years of litigation and the year when they lost touch with Emily and her mother, Karen Butler.

Emily's parents split before she was born. Emily's father, Charles, has no visitation rights. When the child was about 6 months old, her mother moved her to Maryland. In 1996, unbeknownst to the Harrises, she moved to Utah, where she remarried.

The Harrises, not knowing where their granddaughter and former daughter-in-law were, hired private investigators to find them. They wrestled in court for years over their visits with Emily, never dreaming the case would reach the state Supreme Court.

"All you have to do is be a grandparent and look at the smile on your grandchild's face and it's all worth it," Leanne Harris said.

According to her attorney, Butler did not want to forbid the Harrises from seeing Emily but wanted the visits to be arranged as she saw fit, not ordered by the court. She asked that the right of a noncustodial parent to have a say in such disputes be declared unconstitutional.

Now, the Harrises just want an end to the litigation. After the state Supreme Court decision is final next month, they will try to reach an agreement with Butler.

For the past few years, Emily has visited her grandparents three times a year: 12 days in June, 12 in August and from Dec. 26 to the 31st.

Her most recent visit ended last week. As usual, Emily spent much of her time in the kitchen with Grandpa, working in the garden and playing with friends, who, like her bedroom, toys and clothes, are special to Grandma and Grandpa's house.

Leanne Harris said the visit was just like the others the three have shared – what she and her husband have been fighting for all these years.

Previous Case Law see below
Grandparent Visitation Dealt a Blow
Grandparents Lose in Case Seeking Visitation Rights

By Mike McKee
The Recorder
September 25, 2001

A state appeal court strengthened parental rights Monday by holding that California law doesn't give grandparents unfettered rights to visit their grandchildren.

A three-judge panel on San Diego's 4th District Court of Appeal ruled unanimously that a fit parent's opposition to visitation in such instances prevails unless the grandparents can show by clear and convincing evidence that the decision would be detrimental to the child.

"This is so," Justice Judith Haller wrote, "because a parent's decision regarding whether a third party -- even a grandparent -- should visit with his or her children is a basic component of parents' fundamental interest in the care, custody and control of their children and requires heightened protection."

Presiding Justice Daniel Kremer and Justice Patricia Benke concurred in In re Harris, D036144.

In reaching their decision, the justices took a hard look at state Family Code Section 3104, which lets grandparents petition for visitation, but also provides deference to parental autonomy. While finding the statute facially constitutional, the justices ruled that its application in the immediate situation had violated parent Karen Butler's due process rights and the state and federal constitutions.

"The trial court did nothing more than apply a bare-bones best interest test and did not accord the child-rearing decision of Butler, a fit parent, any deference or material weight," the court held. "Because there were no allegations or finding that Butler was an unfit parent, Butler is entitled to a presumption that she will act in her child's best interest and her decisions regarding visitation must be given deference."

The case was filed in San Diego County by Charles Harris Jr. and Leanne Harris, the grandparents of 6-year-old Emily Hope Harris. Butler, the girl's mother, had opposed continued visitation, which, among other things, allowed the youngster to travel alone on airline flights between her home in Utah and her grandparents' in California.

The trial court sided with the grandparents, but the appeal court, after seeking amici curiae briefs from several advocacy and family law groups, reversed.

"By mandating a grandparent to show by the higher standard of clear and convincing evidence that a fit parent's decision against visitation would be detrimental to the child," Justice Haller wrote, "we are precluding a court from overriding a parent's child-rearing decision merely on the basis of the court's contrary view."

The court also took into account the U.S. Supreme Court's year-old ruling in Troxel v. Granville, 530 U.S. 57, which held that while Washington state's grandparent visitation law wasn't unconstitutional on its face, it did infringe on parents' fundamental rights as applied. However, the 4th District held that California's statutory grandparents law was "much more narrowly drawn" and offers "far more" protection for parental autonomy and liberty than the Washington statute.

The 4th District also said that the state should require more than a preponderance of the evidence before overriding a fit parent's child-rearing decisions.

"When a constitutional right is at stake, a significant quantum of proof must be required to afford adequate protection of that right," Justice Haller wrote.

The full text of the ruling will appear in Wednesday's California Daily Opinion Service.

The grandparents' lawyer, Fallbrook solo practitioner Paul Leehey, couldn't be reached for comment Monday. But Huntington Beach solo Jeffrey Doeringer, who represented the mother, called the ruling significant.

"It makes it a little more difficult for grandparents to force parents to come into court," he said. "Hopefully, parents will be protected from unnecessary visitation requests in cases where the parent is fit and there is no proof of detriment or harm to a child."