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  1. #1
    Zipnero Guest

    Grandparent's visitation rights after the death of one parent

    Is the surviving parent obligated to allow the deceased parent's parents to see their grandchild?

  2. #2
    TxStep Guest
    In some states, the grandparents can petition for visitation rights. I don't know what state you are in.

  3. #3
    Join Date
    Jan 2000
    Los Angeles, California

    Re: Grandparent's visitation rights after the death of one parent

    Originally posted by Zipnero
    Is the surviving parent obligated to allow the deceased parent's parents to see their grandchild?
    My response:

    California's viewpoint - -

    Constitutional limitation--nonparent visitation subservient to parents' substantive due process rights: Parents have a 14th Amendment substantive due process "fundamental right" (a "liberty interest") to make decisions concerning the care, custody and control of their children. A state law that, as applied, allows trial courts to grant nonparent visitation rights over a parent's objection whenever the court determines such visitation may serve the child's best interest unconstitutionally infringes on that right. [Troxel v. Granville (2000) 530 U.S. 57, 65-70, 120 S.Ct. 2054, 2060-2062 (invalidating application of Wash. statute authorizing grandparent visitation solely on "best interest" showing]

    Nonparent visitation rights in a case contested by a parent may constitutionally be granted only if, in applying the state statute, the trial court gives a presumption of validity or at least special weight to the parent's decision that the visitation would not be in the child's best interest. [Troxel v. Granville, supra, 530 U.S. at 67-70, 120 S.Ct. at 2061-2062; see Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848, 862-864, 102 Cal.Rptr.2d 476, 486-487--application of Ca Fam § 3102 to establish grandparent visitation schedule over parent's objection unconstitutionally infringed on fundamental parenting rights where grandparents made no assertion and trial court made no finding that contestant father was "unfit"]

    • Noncustodial parent's burden: It follows that the noncustodial parent-petitioner, and not a contesting parent, carries the burden of proof in these cases--i.e., demonstrating "special factors" that would warrant state interference with the parent's decision on the matter. [Troxel v. Granville, supra, 530 U.S. at 69-70, 120 S.Ct. at 2061-2062]

    Constitutionality of grandparent visitation pursuant to Ca Fam § 3104: A California appellate court has agreed with the U.S. Supreme Court's intimation that Ca Fam § 3104 will not run up against the same constitutional infirmities that plagued the Washington state statute in Troxell. "It can hardly be said the California statute [Ca Fam § 3104] at issue in this case comes even close to being so 'breathtakingly broad' as to be unconstitutional. On the contrary, it explicitly limits the situations and circumstances in which grandparents can petition for visitation rights. Even when grandparents are statutorily given standing to petition for visitation rights, there is always a 'rebuttable presumption' in favor of the parents when the parents conclude visitation is not in the best interests of the child . . ." [Lopez v. ******ez (2000) 85 Cal.App.4th 279, 287-288, 102 Cal.Rptr.2d 71, 77-78 (brackets added)]

    • Comment--impact of parent refusing all grandparent visitation: One of the pivotal points in Troxel was that the trial court gave no significant weight to the fact the parent contestant had assented to some visitation, albeit not on the terms the grandparents wanted. [Troxel v. Granville, supra, 530 U.S. at 71-73, 120 S.Ct. at 2063-2064 (brackets added)]

    The same point contributed to the constitutional flaw in a California trial court's order granting grandparent visitation after the mother's death: The father had not sought to cut off the grandparents' visitation but simply contested their right to specify the amount and timing of that visitation. [Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848, 863-864, 102 Cal.Rptr.2d 476, 486-487

    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 (brackets added)]

    Consequently, trial courts entertaining a contested § 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 the surviving parent's "fitness" as a parent is not challenged 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]


  4. #4
    Zipnero Guest

    Grandparents Visitation Rights

    I appreciate the reply, TXstep. The state is South Dakota. The father claims that his two year old son suffers from nightmares about his mother by seeing the his maternal grandmother.

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