Academic journal article Harvard Law Review

Family Law - Grandparent Visitation - California Supreme Court Finds No Infringement of Custodial Mother's Due Process Parenting Interest When Noncustodial Father Supports Grandparent Visitation Petition

Academic journal article Harvard Law Review

Family Law - Grandparent Visitation - California Supreme Court Finds No Infringement of Custodial Mother's Due Process Parenting Interest When Noncustodial Father Supports Grandparent Visitation Petition

Article excerpt

FAMILY LAW--GRANDPARENT VISITATION--CALIFORNIA SUPREME COURT FINDS NO INFRINGEMENT OF CUSTODIAL MOTHER'S DUE PROCESS PARENTING INTEREST WHEN NONCUSTODIAL FATHER SUPPORTS GRANDPARENT VISITATION PETITION.--Butler v. Harris (In re Marriage of Harris), 96 P.3d 141 (Cal. 2004).

Despite being pervasive, (1) grandparent visitation statutes, which allow grandparents to petition for visitation with their grandchildren, often conflict with "perhaps the oldest of the fundamental liberty interests"--an objecting custodial parent's interest "in the care, custody, and control of [her] children." (2) While a splintered Supreme Court addressed this issue in Troxel v. Granville, (3) the plurality declined to define "the precise scope of the parental due process right in the visitation context" (4) and thus invited a menagerie of conflicting state court decisions. (5) Recently, in Butler v. Harris, (6) the California Supreme Court rejected a constitutional challenge to California's grandparent visitation statute by ruling that the noncustodial father's support of the visitation petition defeated the fundamental substantive due process interest of the custodial mother. (7) In so doing, the Butler court failed to establish adequate protection of the custodial parent's due process right to determine with whom--and on what terms--her child associates.

Under section 3104 of the California Family Code, (8) a court may grant visitation rights to a grandparent if it both finds that there is a preexisting relationship between the grandparent and grandchild, and then balances the child's interest in a relationship with her grandparents against the parents' "exercise [of] parental authority." (9) Further, a parent who "has been awarded sole legal and physical custody" is entitled to "a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of" the child, if the parent objects to the visitation. (10)

In January 1994, Karen Butler married Charles Harris. (11) They separated in October 1994, ten days before the birth of their daughter, Emily. (12) Ms. Butler claimed that Mr. Harris was psychologically and physically abusive, (13) and the superior court entered a judgment dissolving the marriage in July 1995. (14) The court awarded Ms. Butler sole legal and physical custody of Emily, (15) and she subsequently moved the family to Maryland. (16) Claiming that Ms. Butler was denying them visitation, Mr. Harris's parents petitioned for a visitation order pursuant to section 3104, and the court ordered four visits in 1996. (17) Without informing the grandparents, Ms. Butler moved to Utah with Emily in late 1996, where she married Mark Butler, a father of six. (18) By 1998, after hiring private investigators to locate Ms. Butler and Emily, Mr. Harris's parents resumed visitation in Utah. (19) In February 1999, the grandparents, with the support of the father, petitioned the superior court to allow them to bring Emily to their home in California for visitation. (20) After several hearings and attempts at mediation, the court concluded that this visitation was in Emily's best interest, and ordered that Emily--then five--fly from Utah to California unaccompanied to visit her paternal grandparents up to three times per year. (21)

Ms. Butler appealed to the California Court of Appeal, arguing that section 3104 violated the U.S. and California Constitutions both facially and as applied. (22) The court reversed. (23) Declining to invalidate section 3104 on its face, (24) the court found that the application of the section to Ms. Butler violated her constitutional rights to due process of law under both the Federal and California Constitutions. (25) The court of appeal faulted the trial court for applying only a "bare-bones best interest test" without "accord[ing] the child rearing decision of Butler, a fit parent, any deference or material weight," as Troxel required. …

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