Qmaiden said:
What is the name of your state?What is the name of your state?What is the name of your state? California
My brother died 8 months ago and left behind his wife of 12 years there 3 year old daughter and 9 year old son and he also has a son from another woman outside the marriage that is 8 years old. My brother had shared custody of his son which allowed him be with his son every other week. All 3 of the kids are very close and he has no other brothers or sisters, now that my brother is gone the kids hardly ever see each other because his mother wont allow him around his step-mother who loves him very much and has been in his life since he was born, all she wants is for the children to grow up together. Is there a law that stated that a stepmother of a deceased father could get visitation is there any custody law that will allow that.
My response:
California policy affords strong protection to sibling relationships. Absent compelling circumstances, such as extraordinary emotional, medical or educational need, an order separating siblings between custodial households ordinarily will be reversed as detrimental to the children's best interest. [Marriage of Williams (2001) 88 Cal.App.4th 808, 814-815, 105 Cal.Rptr.2d 923, 927-928--joint custody modification placing 2 children with move-away mother (Utah) and 2 with father (Calif.) reversed and remanded for determination whether compelling circumstances existed]
"Children are not community property to be divided equally for the benefit of their parents . . . At a minimum, children have a right to the society and companionship of their siblings . . . No published California opinion has sanctioned a custody order which, in essence, divorces children from each other." [Marriage of Williams, supra, 88 Cal.App.4th at 814, 105 Cal.Rptr.2d at 927]
The parent's death does not imbue the grandparents (or other relatives) with the deceased parent's parental rights; nor does it diminish the surviving parent's parental rights. "Nothing in the unfortunate circumstance of one biological parent's death affects the surviving parent's [constitutionally-protected] fundamental right to make parenting decisions concerning their child's contact with grandparents". [Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848, 863, 102 Cal.Rptr.2d 476, 486]
Consequently, trial courts entertaining a contested Family Code § 3102 visitation claim must ordinarily defer to the surviving parent's constitutional right to determine the child's care, custody and control. At least where no evidence of the surviving parent's "unfitness" as a parent is presented and he or she is not seeking to cut off grandparent visitation completely, the nonparent petitioners bear a heavy burden of rebutting the presumption favoring a fit parent's visitation decisions. [See Kyle O. v. Donald R., supra, 85 Cal.App.4th at 863-864, 102 Cal.Rptr.2d at 487; Punsly v. Ho (2001) 87 Cal.App.4th 1099, 1110, 105 Cal.Rptr.2d 139, 147 (same); see also Zasueta v. Zasueta (2002) 102 Cal.App.4th 1242, 1254-1255, 126 Cal.Rptr.2d 245, 254-255--§ 3102 unconstitutional as applied where trial judge failed to accord any weight to "fit" surviving mother's decision that paternal grandparents should not have any visitation at that time]
The same constitutional principles apply where a sibling of the child seeks visitation pursuant to Ca Fam § 3102: Absent compelling facts overcoming the presumption that a "fit" parent is acting in the child's best interest, awarding sibling visitation pursuant to § 3102(a) over the surviving parent's objection unconstitutionally infringes upon the parent's fundamental liberty interest. [Herbst v. Swan (2002) 102 Cal.App.4th 813, 820, 125 Cal.Rptr.2d 836, 841]
By the same token, a nonparent visitation claim (under § 3102 or otherwise) is not automatically defeated by a surviving parent's bare assertion that he or she is a "fit" parent who objects to court-ordered visitation. [Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1470-1471, 1 Cal.Rptr.3d 185, 189 (summary judgment for objecting parents reversed)--"section 3102 is constitutional even though it may allow for court-ordered grandparent visitation over the objection of two fit parents"]
IAAL
