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The California Supreme Court struggled Wednesday in trying to decide whether state law allows courts to grant visitation rights to grandparents over the objections of parents who haven’t been declared unfit. The court must decide whether state statutes are unconstitutional in light of a 4-year-old U.S. Supreme Court ruling that said good parents’ opinions must be taken into account, on the presumption they are acting in their children’s best interests. There is widespread interest in the case, with amici curiae including the Association of Certified Family Law Specialists, the Coalition for Restoration of Parental Rights, the American Civil Liberties Union and two gay groups — Lambda Legal Defense and Education Fund and the National Center for Lesbian Rights. Family Code Section 3104 allows courts to grant visitation to grandparents if there is a strong familial bond and if it’s in the best interests of the grandchild. But San Diego’s 4th District Court of Appeal ruled in 2001 that the law violated Karen Butler’s due process rights under the federal and state constitutions. Butler’s in-laws, Charles and Leanne Harris, had initially sought visitation rights to granddaughter Emily Hope Harris after their son and Butler split. San Diego County Superior Court Judge Thomas Ashworth III granted their request. On Wednesday, the Supreme Court listened intently during oral arguments as Fallbrook, Calif., solo practitioner Paul Leehey, who represents the grandparents, argued that the state law remains constitutional. “The parent just doesn’t trump the child’s interests,” he told the court. “The parents do not have absolute veto power.” Justice Kathryn Mickle Werdegar, however, noted that the mother had not been found unfit for any reason and that she had been granted sole custody. “We do, indeed, have a mother who has been given complete control of the child,” Werdegar said. “And she objects to visitation by the grandparents.” But, Leehey responded, the law requires that the child’s interests prevail. “The rights of the child,” he said, “cannot be waived at the whim of the mother.” When his turn came, Huntington Beach, Calif., solo Jeffrey Doeringer, who represents the mother, argued that the U.S. Supreme Court’s 2000 ruling in Troxel v. Granville, 530 U.S. 57, and the state constitution’s guarantee of liberty interests and due process rights require that parents’ privacy rights be taken into consideration. Justice Marvin Baxter asked if that would apply if a fit parent acts vindictively in blocking grandparent visitation. “At what point,” he asked, “does the privacy interest of the child kick in? Would the parent’s privacy rights,” he added, “trump the best interests of the children?” Doeringer said it would. “The minor’s rights, as long as there is no showing of harm, should follow the rights of the fit parent,” he argued. In a final plea, the grandparents’ lawyer, Leehey, argued that the granddaughter, now 9 years old, would be harmed if the courts were to terminate visitation. “Who is going to tell her she can’t see her grandmother anymore?” he said. “She has had a standing relationship with her grandparents. She now has rights that have to be equal to, if not greater than, her mother’s.” The case is In re the Marriage of Harris, S101836. In a separate case Wednesday, the high court seemed troubled that a convicted double murderer had been sentenced to death after his defense lawyer presented absolutely no mitigating evidence that might have persuaded jurors to choose life in prison instead. Justice Janice Rogers Brown, no foe of the death penalty, noted that even the state’s expert had agreed that the defense should have presented evidence during the trial’s penalty phase. Larry Douglas Lucas was sentenced to death in Los Angeles County in 1987 for the murders of Edwin and Mary Marriott, an elderly couple stabbed several times and beaten repeatedly with a hammer. During the penalty phase of Lucas’ trial, however, his lawyer, James Patterson, chose not to present mitigating evidence. “Clearly, you have to give the jury the opportunity to make a moral decision that this person deserves life,” Cooley Godward partner Steven Friedlander argued Wednesday. The trial lawyer’s decision to skip the mitigating phase “was the difference between night and day,” he continued. “And it made the difference between life and death.” Los Angeles-based Deputy Attorney General Mary Sanchez countered by saying that the evidence the trial lawyer could have provided would have been heavily outweighed by state evidence showing that Lucas had had an extensive criminal career and was always uncontrollable and anti-social. But Chief Justice Ronald George said that the abuses experienced by Lucas in childhood were “above average.” He and Justice Joyce Kennard then detailed many of them: Lucas had whip marks and blisters on his body from childhood beatings; he had stove burns and cigarette burns; and he had been punished by having to sleep behind the stove or under his bed for days at a time. In addition, he had lived in five foster homes before age 3. “It was especially important to the jury to understand why this person became the violent person he was,” Kennard said. The case is In re Larry Lucas on Habeas Corpus, S050142. The court is expected to rule on both cases within 90 days.

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