Nonparent Visitation (Grandparents And Others)
California law confers discretion on the court to grant "reasonable visitation" rights "to any other person [a nonparent] having an interest in the welfare of the child." [Ca Fam § 3100(a) --"reasonable visitation may be ordered to any other person . . ." (emphasis added); Barkaloff v. Woodward (1996) 47 Cal.App.4th 393, 398, 55 Cal.Rptr.2d 167, 170]
However, this right is limited. 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]
Therefore 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. A court decision effectively presuming the opposite (that third party visitation should be granted absent a showing the child would be adversely impacted) directly contravenes the traditional (substantive due process) presumption that a fit parent will act in the child's best interest.
With regard to grandparents seeking visitation, parents' due process right to make decisions concerning their children's care, custody and control does not necessarily preclude a court from granting the nonparent visitation over the objection of a "fit" parent or parents. "The decision of fit parents regarding grandparent visitation is entitled to special weight, but not necessarily immunity from judicial review." [Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1484-1485, 1 Cal.Rptr.3d 185, 200]
"If a court can deprive fit parents of the custody of their children without violating the parents' fundamental right to the care, custody, and control of their children, then certainly a court can order grandparent visitation--a much more limited form of interference with the parents' custodial rights--without necessarily causing such a violation." [Fenn v. Sherriff, supra, 109 Cal.App.4th at 1486, 1 Cal.Rptr.3d at 201]
The noncustodial parent-petitioner, and not a contesting parent, must carry 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 67-70, 120 S.Ct. at 2061-2062]
