California's Grandparent Visitation Statute:
Why the State's Supreme Court Upheld It

California - like every other state -- has a grandparent visitation law: Under the law, courts can order that grandparents be permitted to visit their grandchildren, even if the children's parents object. Recently, in the case of Butler v. Harris, the California Supreme Court upheld the law against a constitutional challenge.

Butler was decided in the shadow of a very similar 2000 decision by the U.S. Supreme Court, Troxel v. Granville. There, the Court struck down, as unconstitutional, an order granting visitation to grandparents over the objection of the children's mother.

The Court found the state's visitation statute "breathtakingly broad." It also found fault with the court order itself - holding it invalid because it failed to sufficiently defer to the constitutionally protected right of parental autonomy.

Given Troxel, shouldn't the California case have come out the other way - with the parents, not the grandparents, winning? As I will explain, that depends on how you read Troxel.

The Reasoning of Troxel: Fit Parents Presumably Act In Children's Best Interests

The statute at issue in Troxel permitted courts - over parents' objection -- to grant requests for visitation from "any person" at "any time" as long as the visitation would serve the best interests of the child.

Under the statute, then, in theory, if Tom Cruise, the mailman, or the Dalai Lama wanted to visit a child, a court could allow such visits, over parents' objection. No wonder the Court called the statute "breathtakingly broad."

In assessing the visitation order at issue in Troxel, the Court noted that longstanding Supreme Court precedent establishes that parents have a constitutionally protected liberty interest in raising their children - including the right to make all important decisions about their lives. Unless a parent is declared unfit, the state cannot unduly infringe upon this liberty interest.

Moreover, to honor this interest, there is a "traditional presumption" that fit parents act in the best interests of their child. That presumption has protected parents who make unpopular decisions about home-schooling and religious isolation, among other issues. That presumption has even protected parents who choose, on religious grounds, to withhold proper medical care for non-life-threatening conditions that their children suffer. Certainly, that presumption should apply to a parent's decision about the people with whom their children should have contact or relationships--even if the would-be visitor is a grandparent.

The visitation order, the majority of the Justices found, did not honor that presumption. The order itself gave no deference to parental autonomy. And in granting the order, the court had failed to honor the presumption.

For these reasons, the Supreme Court voided the visitation order.

Grandparent Visitation Statutes After Troxel: Which Are Invalid?

Troxel dealt only with Washington State's visitation statute. So after it was decided, a question lingered: What about the analogous statutes in the other forty-nine states? Are they unconstitutional?

The Supreme Court in Troxel certainly did not suggest as much. Instead, it said that, at a minimum, a court must give "special weight" to a parent's decision to deny grandparents visitation rights.

In addition, the Court noted with approval that several states - including California -- actually codify the presumption that fit parents act in the best interests of their children, and permit visitation only when that presumption can be rebutted. These statutes seem safe from constitutional challenge. But what about statutes that do not hew to this line?

Since Troxel was issued in 2000, several state supreme courts have had occasion to consider or reconsider the validity of their own grandparent visitation statutes. The results have been mixed - as I discussed in an earlier column. With varying statutes before them, state supreme courts have split fairly evenly about the constitutionality of grandparent visitation laws.

One obvious trend is toward upholding laws that permit grandparents to seek visitation only when the nuclear family is not intact because the parents have never married, divorced, or one of them has died. The California decision and the statute underlying it are consistent with this trend.

Ultimately, the Supreme Court may be compelled to revisit the issue of grandparent visitation. One important issue to consider is why a parent should be granted a lesser right to privacy and autonomy in child rearing simply because he or she is not married to the other parent.

Given the wide variety of family forms in contemporary America, why should constitutional parenting rights differ based on marital status? It is one thing if a parent's parental rights have been terminated - which can happen (and happened in the California case). But why should it matter, with respect to rights over their children vis-à-vis third parties, if parents are not married to each other?

Certainly, the absence of marriage may affect parents' claims upon, and rights with respect to, each other. But why should the absence of a legal relationship between them, affect their legal relationship with their children?

This issue will doubtless arise in the future. In the rest of this column, however, I will focus on the recent California decision upholding that state's statute.

The Butler Case: An Attempt to Terminate Grandparents' Visitation

To begin, here are the facts of the California case: A married couple, Karen Butler and Charles Harris, had a child, Emily. Shortly thereafter, they divorced. According to Karen, Charles was physically and psychologically abusive, and he admitted striking her on at least some occasions.

The court granted Karen sole legal and physical custody of Emily. But it also granted Charles's parents visitation several times a year.

After some difficult visits, Karen sought to terminate the grandparents' visitation with Emily. The visitation had required young Emily to fly, unaccompanied, from Utah to California several times a year. And Karen worried the grandparents would not be able to protect Emily from her violent father. (Indeed, ultimately, Charles's parental rights were completely terminated.)

But despite Karen's wishes, the trial court allowed three visitation periods per year: two that were twelve days long, and one that was six days long. The result was that Emily would spend a month out of every year visiting her grandparents in another state.

Karen appealed the order, citing Troxel.

California Law on Grandparent Visitation

California statutes allow grandparents to get visitation rights in three ways.

First, when a parent has died, a court may award visitation to close relatives of that parent, if it is in the best interests of the child.

Second, in a custody proceeding, a court may grant grandparents visitation rights if it is in the best interests of the child.

Third - in the provision that was at issue in the Butler case -- grandparents may petition for visitation if the grandchild's parents are not married or if certain other conditions are met. That provision applied here - because Karen and Charles were divorced.

Under this third provision, the court must apply a particular standard if both parents object - or the parent with sole legal and physical custody objects. That was the case here: Karen had sole legal and physical custody, and she objected. (Charles, however, supported his parents' visitation - and did so at a time before his parental rights had been terminated.)

The legal standard is this:

First, the court must find a pre-existing bond between grandparent and grandchild as a prerequisite to an order of visitation.

Second, the court must balance "the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority" to deny visitation. As the court strikes the balance, the court must apply a rebuttable presumption that the visitation is not in the best interests of the child. But if that presumption is rebutted - with evidence in favor of the grandparents -- then visitation can still be granted.

The California Supreme Court's Decision in Butler

It turns out that the trial court in Karen's case screwed up: It did not apply the rebuttable presumption even though the statute said to do so. Accordingly, the California Supreme Court sent the case back to the trial court so that it could apply the proper standard. But Karen's appeal also raised a larger question: Is this standard constitutional?

This is the very kind of standard the Supreme Court specifically blessed in Troxel. Just as the Supreme Court required, the statute does give "special weight" to the parent's decision to deny visitation, by virtue of the rebuttable presumption it erects.

Thus, Karen had an uphill battle, to say the least, in challenging the statute. Perhaps realizing that challenging the statute "on its face" would fail, she also challenged it "as applied" to her particular situation.

But here, too, she lost. The California Supreme Court was unwilling to hold that granting the grandparents' request, under the circumstances, violated Karen's parental rights - especially given that Charles, who was then also Emily's legal parent, had supported the request.

Karen's position here is extremely sympathetic: She may rightfully fear that visits to Emily's grandparents will someday include a visit from their son, the violent Charles - especially since the visits will take a full month of the year. And she may rightfully fear that her daughter may not be comfortable on the solo plane trips. But it may be that this is a case of a very bad trial court decision on the facts - not a legal or constitutional issue.

Perhaps on remand, the trial court will hesitate before holding that the presumption that Karen's decision is in Emily's best interests is overcome. After all, isn't Karen simply trying to protect Emily's safety and well-being?