In California, as in most states, if there is a dispute between parents and grandparents over grandparent visitation with the grandchildren, the parents usually win.  But that is not always the case.  California Family Code section 3104 gives grandparents a chance, and in the recently published case of Stuard v. Stuard, the father’s parents won and got court ordered visitation with their 11 year old granddaughter.  They also were awarded $6,000.00 in attorney fees — against their own son (and his ex-wife)!

This case begins with Family Code section 3104, subd. (a) which provides that when the parents are separated, “the court may grant reasonable visitation rights to the grandparent if the court (both) [f]inds that there is a preexisting relationsip between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child (and) [b]alances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority”.

However, if both parents –or just the main custodial parent– oppose the visitation, there is a presumption (that may be overcome) that grandparent visitation is not in the best interest of the child.  So grandparents, don’t get your hopes up.

But in this case, the facts were unique.  Grandma and Grandpa were present when the child was born.  A year later, the grandparents moved to a new home, just three blocks from where the mother and father lived.

When the child was four, the dad would drop her off at school and the grandfather would pick her up afterwards.  At this time, the parents got divorced and the grandparents started seeing the little girl even more, especially when each parent was unavailable due to work scheduling.

One year later, the closeness intensified when the father and daughter moved in with the grandparents.  At this point, the grandparents helped the child “get ready for school, took her to and from school, and watched her until (the dad) came home from work, or until (the mom) picked her up to exercise her parenting time with the child.  The grandparents also attended various school and sports activities”.

The father and his parents did not get along, however, with the father making his parents ask him permission to say goodnight to the granddaughter.  The grandfather then kicked his son out of the house, and the son told his dad he would never see his granddaughter again.

Things got a little better, but the father still wouldn’t let the grandparents watch the girl’s soccer games, at least when the father was there.  The grandparents then started going through the mother to see what visitation she could arrange, but then the mother told them to deal with the father.

By this time, the grandparents said “enough is enough” and filed a petition for grandparent visitation, which the court granted.  The judge said the case was “tragic” and was driven by the father’s “bitterness at having been asked to depart the grandparents’ residence”.  The court could find “no evidence of culpable misconduct of any relevant kind” as far as either grandparent was concerned.

Therefore, the judge found by clear and convincing evidence that there was a preexisting relationship between the child and her grandparents and that grandparent visitation was in the girl’s best interest.  The court did balance the child’s interest against the right of her parents to exercise their parental authority but found that the child’s interest had to prevail.

The judge ordered visitation for the child with her grandparents once a week during a weekday overnight visit.  One overnight weekend visit per month was also ordered.  The grandparents were allowed to take the child on a seven-day vacation each summer and have an overnight visit with her around Thanksgiving and Christmas.  The judge even ordered the parents not to interfere with the grandparents’ attendance at school activities and to keep them informed of those activities.  To top it off, the judge ordered the parents to pay the grandparents $6,000.00 in attorney fees.

The father appealed and argued that section 3104 was unconstitutional and that the trial court abused its discretion.  The father lost.  The Court of Appeal noted “‘because the fundamental parenting right recognized by California courts is not absolute, the opposition of two fit parents to court-ordered grandparent visitation does not, by itself, preclude the court from ordering visitation'”.  The appeals panel, which consists of three justices, further explained, “[t]he decision of father and his wife about whether and under what conditions grandparents should have visitation with their grandchildren is entitled to ‘special weight'” but no more.

This case arose out of Sacramento, and the unanimous Court of Appeal decision was written by Justice Andrea Hoch.  The case was certified for publication, which means it is binding precedent on all trial courts in California and may be cited in written materials by judges and lawyers.

But keep in mind that grandparent petitions are hard to win and this was not an average case.