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Grandparents have the right to visit their grandchildren, the California Supreme Court ruled Monday, but only if they can overcome parents’ objections. The 4-3 ruling, considered mostly favorable to grandparents, also held that courts could award visitation over a custodial parent’s objection as long as the non-custodial parent supports it. The decision drew dissents from three justices, who felt the majority went too far in impinging on parents’ child-rearing rights, which Justice Ming Chin called “possibly the oldest fundamental liberty interest the high court has recognized and… among the most basic of civil rights.” “Both the federal and state constitutions establish the right of custodial parents to decide with whom their children will associate,” Chin wrote in a concurring and dissenting opinion. “Obviously, court-ordered visitation over a custodial parent’s objection infringes on that right.” The closely watched case involved efforts by Leanne and Charles Harris, both residents of Fallbrook in San Diego County, to continue visits with their granddaughter Emily, who will turn 10 in October. Their son, Charles, had separated from the girl’s mother, Karen, before the child’s birth in 1994. His parental rights have recently been terminated. The Harrises were eventually awarded visitation rights, allowing Emily to visit during the summer and at Christmas. Because the mother had relocated to Utah, the visits required Emily to travel alone by plane. San Diego’s Fourth District Court of Appeal reversed the order, saying that it violated the mother’s rights under the federal and state constitutions. The appeal court relied on Troxel v. Granville, 530 U.S. 57, the U.S. Supreme Court’s 2000 ruling that invalidated an extremely broad grandparent visitation law in Washington state. Monday’s ruling by Justice Carlos Moreno rejected the constitutional claims, saying that California Family Code � 3104 — which permits grandparents to petition for visitation — is significantly different from the former Washington law. “Section 3104 is more narrow,” he wrote, “permitting grandparents of a minor child to petition the court for visitation rights only if the child’s parents are not married or are separated or if other similar conditions apply.” Moreno also pointed out that the California law gives “special weight” to the parents’ decision to oppose visitation. “In the present case, the mother was awarded sole custody of Emily and objected to grandparent visitation,” he wrote. “Accordingly, the grandparents were required to overcome a rebuttable presumption that visitation is not in Emily’s best interest.” The decision remands the case back to San Diego so that the trial court judge can reconsider the visitation order. In a separate concurring and dissenting opinion, Justice Marvin Baxter said he would have reserved judgment on whether the statute is constitutional on its face until it was applied directly to the mother’s case. That hasn’t happened yet, he said, because the lower court didn’t give the mother’s objections “special weight” when granting visitation. “Until the statute is actually (and correctly) applied,” Baxter wrote, “it is impossible to know whether an order of visitation will be entered and, if so, its justification and scope.” Justice Chin, meanwhile, also chided the majority for not holding — as the appeal court did — that judges should apply a clear-and-convincing evidence standard in determining whether grandparents can be awarded visitation over the objections of a custodial parent. “A lower standard of proof,” he wrote, “creates too great a risk of ‘having a court (merely) substitute its own views’ regarding the child’s best interests ‘for those of a fit parent.’” Justice Janice Rogers Brown, in yet a third dissent, sympathized with all the parties and their predicament. “In a perfect world, family conflicts would not deteriorate into public brawls; courts would not be required to intervene. Parents would always act rationally and in the best interests of their offspring, and children would never be used as pawns or treated as chattell. . . . This is not the best of all possible worlds, it is just the best we can do.” Huntington Beach attorney Jeffrey Doeringer, who represented the mother, called the ruling a “cloudy” opinion that “opens up the doors to more litigation.” He also said that parents should have the final say about their children’s visitations. Fallbrook lawyer Paul Leehey, who represented the grandparents, said he hopes the whole matter can be resolved amicably. The girl is “doing quite well,” he said, and “loves her grandparents” whom she has visited for several years. “At this point in time, by the delay in the appeal,” Leehey said, “this child has established more of a relationship with her grandparents, and we can’t turn that off. Who’s going to tell the child she can’t see her grandparents anymore?” The ruling is In re Marriage of Harris, 04 C.D.O.S. 7752.

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