California Family Law Child Custody Visitation Grandparent Best Interests Fundamental Rights Unconstitutional Lawyers Attorneys
MARILYN PUNSLY et al., Plaintiffs and Respondents, v. MANWAH HO, Defendant and Appellant.
COURT OF APPEAL OF CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION ONE
After a divorced father died, the mother, who had assumed primary physical custody of their child after the divorce, continued to facilitate visitation between the child and the paternal grandparents. When a dispute arose over that visitation, the grandparents petitioned for a court-ordered visitation schedule pursuant to Fam. Code, ? 3102.? The trial court awarded visitation to the grandparents according to a prescribed schedule over the mother?s opposition. The Court of Appeal reversed the judgment and remanded to the trial court with directions to enter a new order denying the grandparents? request for a visitation schedule. Initially, the court held that the trial court?s order was appealable by the mother on constitutional grounds even though she had not first raised this issue before the trial court, since the United States Supreme Court had issued a decision declaring application of a nonparental visitation statute from another state unconstitutional, and that Supreme Court decision affected related statutes in other states. The court further held that the trial court?s application of Fam. Code, ? 3102, under the circumstances of this particular case, unduly infringed upon the mother?s fundamental rights as a parent. This mother was a fit parent and was willing to voluntarily schedule visitation with the grandparents, and the trial court erred in applying a presumption that visitation with the grandparents was in the child?s best interests. Under these circumstances, the trial court violated the mother?s due process rights as a fit custodial parent to make decisions regarding her child.
ISSUES:
Whether Section 3102, as applied in this case, unconstitutionally infringed on Defendant?s fundamental rights?
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DISCUSSION:
Section 3102 states: ?(a) If either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the child?s minority upon a finding that the visitation would be in the best interest of the minor child. (b) In granting visitation pursuant to this section to a person other than a grandparent of the child, the court shall consider the amount of personal contact between the person and the child before the application for the visitation order. (c) This section does not apply if the child has been adopted by a person other than a stepparent or grandparent of the child. Any visitation rights granted pursuant to this section before the adoption of the child automatically terminate if the child is adopted by a person other than a stepparent or grandparent of the child.?? The beginning premise of any determination regarding the constitutionality of a statute is an assumption of its validity. Courts resolve all doubts in favor of its constitutionality, and uphold it unless it is in clear and unquestionable conflict with the state or federal Constitutions.? A court may apply a facially sufficient statute in an unconstitutional manner. ??The practical effect of holding a statute unconstitutional ?as applied? is to prevent its future application in a similar context, but not to render it utterly inoperative.?? In Troxel?s case, 530 U.S. 57 [120 S. Ct. 2054], the United States Supreme Court, in a plurality opinion, held a Washington statute that authorized nonparental visitation with a child unconstitutional as applied to the circumstances of the case before it.? The circumstances of Troxel bear a resemblance to those before us.? The court then addressed the facts of the case and made three important determinations. First, the court noted the grandparents did not allege, nor did the trial court find, that the mother was an unfit parent. This fact ran contrary to the presumption that fit parents act in the best interests of their children. Second, the trial court in the case gave no special weight to the mother?s determination of her children?s best interests. Rather, the findings of the trial court indicated it effectively placed the burden on the mother to disprove a presumption that visitation with the grandparents was in her children?s best interests. Third, the court emphasized the trial court?s failure to give any weight to the fact the mother voluntarily agreed to allow visitation with her children?s grandparents. The dispute at hand arose because the grandparents wanted more than the mother willingly offered. Based on these factors, the court determined the Washington statute, as applied, was unconstitutional. This case involved nothing more than a simple disagreement between the Washington Superior Court and the mother concerning her children?s best interest.? The Due Process Clause does not permit a State to infringe on the fundamental right of parents to make childrearing decisions simply because a state judge believes a better decision could be made.
JUDGMENT:
The judgment was reversed in its entirety, and the matter was remanded to the trial court with directions to vacate its order granting plaintiffs? request for a visitation schedule, and to enter a new order denying that request. Given plaintiffs? concession on a petition for writ of supersedes, the visitation schedule was stayed. Plaintiffs were ordered to pay defendant?s costs of appeal.
Disclaimer:
These summaries are provided by the SRIS Law Group.? They represent the firm?s unofficial views of the Justices? opinions.? The original opinions should be consulted for their authoritative content
The SRIS Law Group is a law firm with offices in Virginia, Maryland & Massachusetts.? The law firm assists clients with criminal/traffic defense, family law, immigration, civil litigation,bankruptcy & military law.? The law firm has Virginia offices in Fairfax County, Richmond, Virginia Beach, Loudoun County, Prince William County & Fredericksburg, Virginia.? The Maryland offices are in Montgomery County & Baltimore.? The Massachusetts offices are in Boston & Cambridge.? The New York office is in New York City.? The?North Carolina Office is in Charlotte, NC which is in Mecklenburg County.? The California office is in Orange County, CA.
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Posted by Dan on Thursday, October 6, 2011 at 11:56 am?
Filed under Grandparenting ? Tagged with Attorneys, Best, California, California Family Law, child, Child Custody, Constitutional Grounds, Court Of Appeal, Custodial Parent, Custody, Custody Visitation, Due Process Rights, family, Fourth Appellate District, Fourth Appellate District Division One, Fundamental, Fundamental Rights, Grandparent, interests, Lawyers, Lawyers Attorneys, Paternal Grandparents, Physical Custody, Presumption, Rights, States Supreme Court, Supreme Court Decision, Trial Court, Unconstitutional, United States Supreme Court, VISITATION, Visitation Schedule, Visitation Statute
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