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Carol Rich v. Rochelle Thatcher

November 14, 2011

CAROL RICH, PLAINTIFF AND APPELLANT,
v.
ROCHELLE THATCHER , DEFENDANT AND RESPONDENT.



Roger Lund, Judge Superior Court County of Ventura (Super. Ct. No. SD035591) (Ventura County)

The opinion of the court was delivered by: Yegan, Acting P.J.

CERTIFIED FOR PUBLICATION

The United States Supreme Court has said: "[T]he custody, care and nurture of the child reside first in the parents whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.' " (Troxel v. Granville (2000) 530 U.S. 57, 65-66 [147 L.Ed.2d 49, 56-57 (plurality opinion)].) As we shall explain, "first" means first. A fit parent has a federal due process constitutional right to make decisions concerning the care, custody, and control of his or her child. (530 U. S. at pp. 56, 58, 62.) This includes the right to limit visitation of the child by a third party, even a grandparent. But the right is not absolute. A family law court may order grandparent visitation upon a proper showing. No such showing was made here.

Carol Rich (grandmother) appeals from an order denying her request for visitation with her four-year-old grandchild (grandchild). The request was made pursuant to Family Code section 3102.*fn1 Grandmother contends that (1) the trial court erroneously required grandmother to show by clear and convincing evidence that the denial of grandparent visitation would be detrimental to the grandchild, and (2) the court abused its discretion in finding that grandparent visitation would not be in grandchild's best interest. We affirm.

Factual and Procedural Background

In December 2006 Rochelle Thatcher (mother) gave birth to grandchild. The father was grandmother's son. Mother and father were not married. Mother has physical custody of the grandchild. Grandmother and mother "do not get along." Among other disputes, they had differences of opinion concerning father's long-term use of drugs. Father died in 2010 of a drug overdose and left two suicide notes. Grandmother disputed the coroner's determination of death by suicide and told the coroner that mother may have been responsible for his death. Their hostility was open and clear.

Father had previously filed a "Petition to Establish Parental Relationship" and grandmother petitioned for joinder. Grandmother claimed that she should be joined in the action "to assert her visitation rights" pursuant to section 3102. Mother opposed joinder and grandparent visitation. The trial court granted the petition for joinder.

In June 2010 the trial court conducted a lengthy evidentiary hearing on visitation. Thereafter, it issued a written ruling which could serve as a "text book example" of how a trial court should proceed. (See e.g. People v. Rosalez (1979) 89 Cal.App.3d 789, 792.) The trial court denied grandmother's request for visitation. The court stated that its decision was based on "[d]eclarations of the parties and witnesses" and on testimony at the hearing. It expressed "great concern over [grandmother's] veracity." It also noted that, although grandmother had shown that she had a relationship with grandchild, she had failed to show "a deep and abiding relationship." The trial court found that "Grandmother's relationship with [grandchild] was rather limited to interaction with [grandchild] during [grandchild's] supervised visits with Father, largely due to the fact that Grandmother was the court-appointed supervisor for Father's visits with [grandchild]."*fn2

The trial court summarized the relevant law as follows: "The case law applicable to Section 3102 requires the Court to apply a rebuttable presumption that a fit parent will act in the best interest of her child. This presumption can only be overcome by clear and convincing evidence that denial of the grandparent visitation would be detrimental to the child." The court concluded: "[N]o evidence was presented to the Court to suggest that Mother is an unfit parent. As such, the Court . . . finds that Grandmother has not provided clear and convincing evidence to rebut the presumption that Mother is acting in the best interest of [grandchild] in denying visitation to Grandmother at this time or that denial of visitation with Grandmother would be detrimental to [grandchild]." The court went on to find that, regardless of whether the "detrimental" requirement was satisfied, the granting of visitation to grandmother would not be in grandchild's best interest: "Even if the Court were to find that Grandmother had overcome the presumption by clear and convincing evidence that denial of the visitation by Grandmother was detrimental to [grandchild], the Court hereby finds that it would not be in [grandchild's] best interest to interject court-ordered visitation with Grandmother, particularly in light of the longstanding animosity between Mother and Grandmother."

Section 3102

"Grandparents' rights to court-ordered visitation with their grandchildren are purely statutory. [Citation.]" (In re Marriage of Harris (2004) 34 Cal.4th 210, 219.) The applicable statute here, section 3102, provides in relevant part: "a) If either parent of an unemancipated minor child is deceased, the . . . 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."

Courts have construed section 3102 as requiring a rebuttable presumption in favor of a fit surviving parent's decision that grandparent visitation would not be in the best interest of the child. (In re Marriage of W. (2003) 114 Cal.App.4th 68, 74-75; Fenn v. Sherriff (2003) 109 Cal.App.4th 1466, 1479, fn. 4; Zasueta v. Zasueta (2002) 102 Cal.App.4th 1242, 1253.)

Clear and Convincing Burden

Grandmother contends that the trial court erred in applying the clear and convincing burden. We disagree with her and agree with the trial court's legal conclusion. We hold as follows: To overcome the presumption that a fit parent will act in the best interest of the grandchild, a grandparent has the burden of proof and must show, by clear and convincing evidence, that denial of visitation is not in the best interest of the grandchild, i.e., denial of visitation would be detrimental to the grandchild. The fair import of the word "detriment" is damage, harm, or loss. (See American Heritage Dict. (2d college ed. 1982) P. 388, col. 2.) If grandparent visitation is in the grandchild's "best interest," it is not "detrimental." If grandparent visitation is not in the ...


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