Lisa D. v. Carol F.
Lisa D. v. Carol F.
Dissenting Opinion
I respectfully dissent.
My brethren see this case factually as involving “less than a congenial relationship” between the mother and maternal grandparent. In reality, the facts show both a bitter and prolonged legal and interfamilial battle over custody and visitation with the now five-year-old Robert. These are the uncontested facts underlying the partial list of parental complaints recited by the majority (majority opn., ante, p. 394):
On September 18, 1978, Lisa was granted care, custody and control of Robert in a judgment for dissolution of her previous marriage entered in the State of Illinois. Before that date Lisa had left Robert in the grandparents’ temporary care. Following her remarriage on May 5, 1980, Lisa sought the return of Robert but the grandparents refused and Lisa filed a petition for writ in this court. To counter the mother’s legal action, the grandparents filed a petition for adoption and a petition for freedom from parental custody and control (Civ. Code, § 232), alleging Robert had been abandoned as defined by Civil Code section 232. Lisa opposed the grandparents’ petitions. Thereafter on August 13, 1980, Lisa and the grandparents, through counsel, orally stipulated to provide physical possession of
Approximately two years later (May 5, 1982) Lisa filed a motion seeking, among other things, to vacate in its entirety the stipulated order. The motion was accompanied by declarations based upon the contention the stipulated order substantially interfered with the D.s’ right to parent Robert. The grandparents countered with a request to deny Lisa’s motion and asked that the court order a conciliation court investigation and report regarding custody and visitation.
I
In this setting the majority would decide a profound factually multifaceted, legally thorny issue—the welfare of the child—on the narrow legalistic ground of whether the trial court abused its discretion in granting visitation rights to the grandparents, i.e., whether “there is sufficient evidence to support the order.” (Majority opn., ante, p. 396.) This prefatory legal rubric is but the threshold of the needed analysis where grandparent-parent-child relationships are the subject matter. The point of beginning for the admeasurement of the principles governing the granting of visitation privileges (as well as the granting of custody) is the best interest and welfare of the child (In re Marriage of Halpern (1982) 133 Cal.App.3d 297, 315 [184 Cal.Rptr. 740]) viewed against the backdrop of the statutory and constitutionally created rights and obligations of parenting.
In this case fundamental parenting rights were affected by the exercise of discretion by the trial court. It was said in In re Carmaleta B. (1978) 21 Cal.3d 482, 496 [146 Cal.Rptr. 623, 579 P.2d 514]: “[W]e recognize that such discretion can only be truly exercised if there is no misconception by the trial court as to the legal basis for its action.”
The trial court’s making the child a football in the game of life rather than a player must be examined in light of certain controlling legal constitutional premises. “Parenting is a fundamental right, and accordingly, is disturbed only in extreme cases of persons acting in a fashion incompatible with parenthood. Thus, the court in In re T M. R. (1974) 41 Cal.App.3d 694, 703 . . . , held: ‘The relationship of. . . natural parent. . . [and] . . . children is a vital human relationship which has far-reaching implications for the growth and development of the child. (See Kay & Phillips, Poverty and the Law of Child Custody (1966) 54 Cal.L.Rev. 717. . . .’” (In re Carmaleta B., supra, at p. 489.)
An earlier appellate court decision Odell v. Lutz (1947) 78 Cal.App.2d 104, 106 [177 P.2d 628], stated this verity: “Although the rights of par
The right of visitation, while not the equivalent of full custody, is a limited form of custody during the time the right is exercised. (See Perry v. Superior Court (1980) 108 Cal.App.3d 480, 483 [166 Cal.Rptr. 583].) Against this conceded intrusion on the right to parent must be weighed the importance of the family. (See Stanley v. Illinois (1972) 405 U.S. 645, 651 [31 L.Ed.2d 551, 558-559, 92 S.Ct. 1208].) “The rights to conceive and to raise one’s children have been deemed ‘essential,’ Meyer v. Nebraska, 262 U.S. 390, 399 .... ‘It is cardinal with us that the custody, care and nurture of the child reside first in the parents . . . . ’ Prince v. Massachusetts, 321 U.S. 158, 166 ... .” (Ibid.)
Most recently the United States Supreme Court in Santosky v. Kramer (1982) 455 U.S. 745, 753 [71 L.Ed.2d 599, 606, 102 S.Ct. 1388, 1394], reaffirmed the fundamental nature of the right to parent: “The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State.” And the United States Supreme Court in Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27 [68 L.Ed.2d 640, 649-650, 101 S.Ct. 2153, 2159], stated: “This Court’s decisions have by now made plain beyond the need for multiple citation that a parent’s desire for and right to ‘the companionship, care, custody and management of his or her children’ is an important interest that ‘undeniably warrants deference and, absent a powerful countervailing interest, protection. ’ ... A parent’s interest in the accuracy and injustice of the decision to terminate his or her parental status is therefore a commanding one.” (Fn. omitted.) See also the Lassiter dissent (Black-
Most recently a perceptive California appellate court in In re Marriage of Mentry (1983) 142 Cal.App.3d 260, 267-268 [190 Cal.Rptr. 843], said: “The concept of family privacy embodies not simply a policy of minimum state intervention but also a presumption of parental autonomy. Many of the purposes served by this presumption become more important after dissolution than they were before. One such purpose, for example, is to diminish the uncertainties and discontinuities that can afflict the parent-child relationship whenever third parties (lawyers as well as judges) episodically intrude through an ill-equipped adversarial process in which decisions are subject to reconsideration and eventual appellate review. Such uncertainties and discontinuities are of course more likely and serious dangers after separation or dissolution than before.” (Fn. omitted.) The same court said in In re Marriage of Wellman (1980) 104 Cal.App.3d 992, 996 [164 Cal.Rptr. 148]: “\T\he state has no general authority to dictate to parents the manner in which they should rear their children. ‘[Constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society. “It is cardinal with us that the 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.” ’ (Ginsberg v. New York (1968) 390 U.S. 629, 639 ... .” (Italics added.) See also Stanley v. Illinois, supra, 405 U.S. 645, 651 [31 L.Ed.2d 551, 558, 92 S.Ct. 1208], where the Supreme Court made it plain “that the interest of a parent in the companionship, care, custody, and management of his children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.’ Kovacs v. Cooper, 336 U.S. 77, 95 . . . .”
Thus there is a wealth of authority which reflects a judicial disinclination to interfere with family privacy in the absence of evidence establishing a “compelling need.” (In re Carmaleta B., supra, 21 Cal.3d 482, 489, 495-496; In re Marriage of Mentry, supra, 142 Cal.App.3d 260, 267; In re Marriage of Murga (1980) 103 Cal.App.3d 498, 505-506 [163 Cal.Rptr. 79].)
Furthermore, there is a growing judicial sensibility that intervention may create a more serious problem than that it purports to remedy. (See In re Marriage of Mentry, supra, at p. 270; Kilgrow v. Kilgrow (1958) 268 Ala.
One further constitutional consideration must be factored into any decision to sustain or reverse this order, to wit: the standard of proof requirement of which the trial court must be made consciously aware before interfering with parental rights. This is not a civil dispute over money damages where the application of the “preponderance of evidence” standard indicates society’s minimal concern with the result and therefore that the litigants should “share the risks of error in roughly equal fashions.” (Adding-ton v. Texas (1979) 441 U.S. 418, 425 [60 L.Ed.2d 323, 330, 99 S.Ct. 1804, 1808].) Nor is it a criminal dispute where the stringent “beyond a reasonable doubt” standard tells us of the weight and gravity of the private interest involved and society’s interest in avoiding an erroneous conviction.
Rather the standard here where parental rights are fundamental, and societal interest in avoiding error with its enormous consequences must require at least clear and convincing evidence be produced. This is a matter fraught with potential danger to this child if error is committed in deciding the dispute. (See Santosky v. Kramer, supra, 455 U.S. 745, 754-766 [71 L.Ed.2d 599, 607-615, 102 S.Ct. at pp. 1395-1401]; Addington v. Texas, supra, 441 U.S. 418, 425.) Furthermore, “[T]he litigants and the factfinders must know at the outset of a given proceeding how the risk of error will be allocated, the standard of proof necessarily must be calibrated in advance.” (Santosky v. Kramer, supra, 455 U.S. at p. 757 [71 L.Ed.2d at p. 609, 102 S.Ct. at p. 1396]; italics added.) The record here reflects a failure by the trial court to reach its decision in the compelling light of these fundamental and controlling principles.
The factual record points unerringly to the rational conclusion that hostilities have continued through the years, escalating with the grandparents’ unsuccessful bid to free the child from the mother’s custody on the ground of abandonment. Without doubt, judicial resolution of the custody dispute has failed to quell these hostilities or improve the parties’ relationship. Robert continues to be an innocent pawn in the ongoing battle. The parents’ allegations of intermeddling have gone unchallenged, leading to the conclusion the grandparents have seriously interfered in the parenting function.
Evidence of the nature here presented that warranted the court in Adoption of Berman (1975) 44 Cal.App.3d 687, 697 [118 Cal.Rptr. 804], to conclude
Robert has been in his mother’s custody since November 1980. Therefore, this is not a situation where the child has lived continuously with the grandparents over a long term; denying the grandparents visitation rights will not sever strong emotional bonds such as these which exist between a child and his or her psychological parents. While the family services division counselor is hopeful counseling will help ameliorate the family feud, this hope is naught but a pie in the sky. The present underlying reality is interfamily hostility with the child at the leading edge of the fight.
II
The scholarly authorities are in wordy dispute as to how to resolve the issue raised here. Goldstein, A. Freud and A. Solnit in the context of parent visitation found that children have difficulty in relating positively to and profiting from contact with two parents who are not in positive contact with each other. (Beyond The Best Interests Of The Child (1979 ed.) at pp. 37-38.) The authors note: “Loyalty conflicts are common and normal under such conditions and may have devastating consequences by destroying the child’s positive relationships to both parents.” (Id., at p. 37.) Foster and Freed note: “If visitation is a constant source of friction, all relationships may be impaired and the child may become the principal victim regardless of who was most to blame for the difficulty.” (Grandparent Visitation: Vagaries and Vicissitudes (1979) 23 St. Louis U. L.J., 643, 664.) Our ruling here must protect Robert from the “devastating consequences” of being pulled between parents and grandparents to the extent he lacks a positive relationship to either set.
In the short run, the practical result of the decision for non visitation would be that the parents will dictate the extent of any relationship Robert has with his grandparents. It is therefore reminiscent of Goldstein, Freud and Solnit’s controversial recommendation that, upon divorce, the custodial parent shall have the right to decide whether the noncustodial parent may visit with the child. (See Beyond The Best Interests Of The Child, supra, at p. 38.)
Numerous authorities have examined this recommendation (see, e.g., Katkin, et al., Above and Beyond the Best Interests of the Child: An Inquiry
Ill
While the authorities may be in philosophical dispute as to how to resolve this dilemma, there is legislative support for disparate treatment of parents and grandparents with regard to visitation rights where animosity exists between parent-parent and parent(s)-grandparent(s), respectively, in the two standards for granting visitation set out in Civil Code section 4601. Under this section, parents must be awarded visitation unless it is shown visitation would be detrimental to the child’s best interests. Other interested parties (including grandparents) may be granted visitation, in the court’s discretion. Juxtaposed, the two standards clearly support the proposition parental right of access to the child is paramount to that of grandparents. Serious interference with the parenting function warrants denial of grandparent visitation, while one parent’s interference with the parenting function of the other parent may not.
An amendment to Civil Code section 4351.5, effective January 1, 1984, while not applicable to this action,
I would conclude to compel visitation under the foregoing circumstances is an abuse of discretion on the part of the trial court and an interference with the constitutional protected right to parenting, all to the detriment of this child. Civil Code section 4601’s discretionary grant of visitation to nonparents does not warrant placing Robert amid the admitted warring of parents and grandparents. A lawful, constitutional, child protective order should read: “The evidence shows that the constant turmoil between the parties is ... a ‘battle’ in which the children are the ones most likely to get hurt. The grandparents undoubtedly exhibit great love and concern for the children, but unfortunately the circumstances are such that it is better for the children that the grandparents abstain from all contact with them, until such as there exists ‘. . . a unified and congenial family atmosphere with the grandparents ultimately included. . . .’” (Adoption of Berman, supra, 44 Cal.App.3d 687, 696.) Instead, the trial court has assumed the role of the black robed and hatted French magistrate (as depicted in the classic Honoré Daumier wash drawing) who looks benignly down upon the confused and angry litigants and ingenuously announces: “The parties are to be reconciled.”
A petition for a rehearing was denied February 10, 1984. Staniforth, J., was of the opinion that the petition should be granted. Appellants’ petition for a hearing by the Supreme Court was denied April 4, 1984. Bird, C. J., was of the opinion that the petition should be granted.
In order for this cause to be governed by section 4351.5 the grandparents would have had to seek visitation rights in a proceeding for nullity of marriage, legal separation, or dissolution proceedings in which daughter Lisa was involved. (See § 4351.5, subd. (b).
Opinion of the Court
Opinion
We confront here the issue of the right of grandparent visitation of a child where the parents and maternal grandparents have less than a congenial relationship. We conclude that in spite of the continuing internecine conflict substantial evidence supports the court’s order permitting grandparent visitation under Civil Code section 4601.
Factual and Procedural Background
Plaintiff Lisa D. is the natural mother and Thomas D. is the adoptive father of six-year-old Robert. The D.s were married on May 5, 1980. The defendants Carol F. and Raymond F. are the maternal grandparents of Robert (grandparents). On September 18, 1978, Lisa was granted care, custody and control of Robert in an Illinois judgment of dissolution. Before that date she had left Robert in the temporary care of her parents. After her marriage
About two years later Lisa, joined by her husband, moved to “vacate” the stipulated order. Declarations accompanying her motion explained that the order substantially interfered with the rights to parent the child. The grandparents opposed the motion and requested the court order a conciliation court investigation and report regarding the custody and visitation. After receiving the oral report of the family services division counselor (Dean Metzner) the court ordered:
“B. The Court further finds that it is in the best interest of the child to continue a visitation schedule with Respondents/Grandparents Carol and Raymond F.
“The court finds that is in the best interest of the minor child, Robert, to continue the visitation between the grandparents and the child on the following terms and conditions:
“1. The Respondent/Grandparents shall have the child one weekend per month from 6:00 p.m. on Friday to 6:00 p.m. on Sunday. The weekend shall be designated by the Petitioner/Mother, and she shall inform the Respondent/ Grandparents on or before the 20th day of the preceding month as to the weekend they shall have the visitation.
“2. All parties to this action, which include the parents and grandparents shall participate in psychological counseling to work out further visitation problems, and the parents shall bring the child to such counseling as is deemed necessary by the psychologist. They shall use a mutually agreed upon psychologist and Respondents shall pay the initial $500.00 for the*395 counseling of the parties. All charges thereafter shall be shared equally between the Petitioners and the Respondents.” The parents appeal this order.
I
The parents contend they have encountered substantial difficulties with what they consider interference by the grandparents with the parenting of their son. Specifically, they point to the grandparents’ past refusal to cooperate in toilet training and in the weaning process, the grandparents’ refusal to return Robert from visitation when ill and causing treatment by a doctor not knowledgeable concerning their son’s condition, the grandparents’ spoiling of Robert with resultant difficulties in raising him, the grandparent’s provision of dental treatment without permission when the grandparents knew the child had his own dentist, the grandparents’ continuing coldness and hostility to the parents which rendered the parties’ ability to communicate with each other impossible, thus constituting a serious impediment to plaintiffs’ ability to parent. When the parents perceived the interference of the grandparents to be too great, the present proceedings to modify the previous order were commenced.
Before the hearing the parties met with counselor Metzner. At the hearing he recommended counseling not because of the psychopathology of the child or any of the parties but counseling “focusing on the needs of the child, which is one of the things that has been at issue over the past couple of years [which] would be certainly helpful in this case.” Metzner confirmed the existence of conflict between the parents and grandparents as to how the child should be raised.
Before the effective date of the Family Law Act, no statute provided for visitation rights in anyone other than the father and mother except for the provision in section 197.5 which permits visitation orders in favor of grandparents in cases where the grandparents’ child was deceased. That provision is still effective but not applicable here for both parents are living. In earlier California cases orders have been made granting grandparents rights of visitation and were upheld. In these cases, visitation orders were granted upon stipulations of the parents. (See Bookstein v. Bookstein (1970) 7 Cal.App.3d 219 [86 Cal.Rptr. 495]; Benner v. Benner (1952) 113 Cal.App.2d 531 [248 P.2d 425]; Kentera v. Kentera (1944) 66 Cal.App.2d 373 [152 P.2d 238].) Perry v. Superior Court (1980) 108 Cal.App.3d 480, 482 [166 Cal.Rptr. 583], construed section 4601 “to permit the court to award reasonable visitation rights to a nonparent only if in the proceeding before it the court otherwise has jurisdiction over the issue of custody.” The need for juris
The right to parent can only give way upon a clear and convincing showing of parental unfitness and detriment to the child. However, we are not here concerned with an award of custody but simply a temporary right of visitation. The right of visitation while not being equivalent of full custody is a limited form of custody during the time the right is being exercised. (See Perry v. Superior Court, supra, 108 Cal.App.3d at p. 483.) Against this conceded intrusion on the right to parent must be measured the section 4601 grant of right of reasonable visitation where the interests and the welfare of the child are to be benefited.
The parents argue that In re Marriage of Jenkens, supra, 116 Cal.App.3d 767 requires and authorizes the denial of grandparent visitation. However, Jenkens was determined as a jurisdictional question as was Perry. In Jenkens, the trial court was without jurisdiction, in a proceeding for modification, to adjudicate the visitation rights of the grandparents where a State of Washington interlocutory dissolution decree had awarded the child’s custody to the mother and the modification proceeding had been instituted after the death of the child’s father. The grandparents had no standing to contest the surviving parent’s right to exclusive custody of the child, had no judicially recognized basis from which to demand visitation, absent their institution of a distinct custody proceeding in which they need prove the mother’s unfitness. Here, however, the question of visitation rights originated in a custody proceeding involving the grandparents, not a dissolution proceeding. The jurisdictional question is not present.
Deciding jurisdiction does not conclude this matter. The principal issue before us is whether there is sufficient evidence to support the order. Even in child custody matters appellate review is governed by the substantial evidence rule. (See Guardianship of Phillip B. (1983) 139 Cal.App.3d 407, 413-414 [188 Cal.Rptr. 781].) Trial courts have very extensive discretion in determining what will be in the best interests of a child and “ ‘. . . the conclusion arrived at by . . . courts in such cases will not be set aside unless the record discloses a clear abuse of discretion. ’ [Citation.] ... It is the province of the trial court to judge the effect and value of the evidence, determine the credibility of witnesses and resolve the conflicts in the evidence or in the reasonable inferences to be drawn from the evidence. When the evidence is conflicting, the ‘appellate court will indulge all intendments and reasonable inferences which favor sustaining the finding of the trier of fact and will not disturb that finding when there is substantial evidence in the record in support thereof [citation].’ [Citations.]” (Bookstein v. Bookstein, supra, 7 Cal.App.3d at p. 224.)
While this record reflects a sad story of intrafamily discord with continuing hostilities we cannot preempt the trial court’s factfinding responsibility. Although the adversary forum of the trial court is admittedly an unsatisfactory arena to resolve the sensitive issues involving child custody, the court’s use of the family conciliation court for a mediation proceeding was consistent with its efforts to reach a Solomon-like decision. There is no suggestion the parents were prevented from presenting relevant evidence from any source on the issue of what they believed to be in the best interests of their child. As a tactical matter the parents’ able trial counsel elected to restrict his advocacy to the legal issues supporting his clients’ position. Thus, on this limited record absent a factual basis, we cannot say the conflict here precludes grandparent visitation.
Grandparent visitation is beneficial for a child’s development allowing for the establishment and later maintenance of an important familial relationship extending beyond childhood. Conceptually, depriving a child from his or her grandparents sets the child apart from his peers and impedes rapport between “natural” family. Unless family ties are maintained, later attempts at rekindling the family flame become awkward if not impossible.
This record reflects the court’s appreciation of the practical problems and theoretical benefits of grandparent visitation. Sensitive to the issues, the court here weighed and considered the evidence. We cannot say the result reached was a clear abuse of the court’s discretion and accordingly affirm that part of the court’s order continuing grandparent visitation.
II
We have some discomfort with the order for psychological counseling, however. We use the word “discomfort” because the parents’ counsel failed to object to that order and at trial appeared to acquiesce to the order for counseling agreeing to submit the name of a mutually satisfactory counselor. Nonetheless, the order was made without any showing of unfairness,
Disposition
The order is modified to delete the requirement of psychological counseling. Except as so modified, the order is affirmed.
Work, J., concurred.
All statutory references are to the Civil Code.
Section 4601 provides: “Reasonable visitation rights shall be awarded to a parent unless it is shown that such visitation would be detrimental to the best interests of the child. In the discretion of the court, reasonable visitation rights may be granted to any other person having interest in the welfare of the child. ”
The order for visitation provided in pertinent part as follows: “Commencing Thursday, June 11, 1981, and continuing until further order of . . . court, visitation with the [grandparents] once each and every month from 7:00 p.m. on the Second Thursday of the month until 7:00 p.m. on the following Sunday. [1] . . . [Grandparents] shall also have the right to a summer visitation . . . for a period of two (2) weeks if, at the time of the visitation, both parties are residing within the state of California, and for a period of one (1) month if either party is residing outside of the state.”
Reference
- Full Case Name
- In Re ROBERT D., a Minor. LISA D. Et Al., Petitioners and Appellants, v. CAROL F. Et Al., Objectors and Respondents
- Cited By
- 11 cases
- Status
- Published