Grandparents’ and Nonparents’ Rights to Custody and Visitation

There are specific requirements which must be met in requesting custody that differ from those in requesting visitation.  Further, there are limitations as to whether a pending case in which custody of the child is or may be at issue must exist as opposed to filing an independent action for custody or visitation.  In simplest terms, the bar is higher for requesting custody than for requesting visitation.

Petitioning for custody generally requires a pending action in which custody of a minor child(ren) is or may be at issue. Grandparents and other nonparents may petition for joinder in the same lawsuit and be awarded custody of the child under certain circumstances.  However, where no case exists in which custody of the minor child is or may be an issue, generally neither a grandparent nor other nonparent may petition for custody by filing an independent action.  (The alternative is to petition the probate court for a guardianship – unless the juvenile court has jurisdiction of the child – where there is a basis for a guardianship.)

Likewise, grandparents and other nonparents may be awarded reasonable visitation in a pending family-court proceeding in which custody of the minor child is or may be an issue.  But generally only a grandparent can petition in an independent action for visitation.  A stepparent who is a party to the proceeding may be granted visitation if the visitation does not conflict with the custody or visitation rights of a birth parent who is not a party to the proceeding.  (Family Code sec. 3101.) 

Other nonparents normally cannot petition for visitation independently unless there is a statutory exception, such as one of the parents is deceased and the nonparent is one of the relatives specified in Family Code section 3102(a) (i.e., a deceased parent’s child(ren), sibling(s), or grandparent(s)).  Note that Family Code section 3102 does not apply if the minor child has been adopted by a person other than a stepparent or grandparent.  (Family Code sec. 3102(c).)

The judicial officer must join to the proceeding any person who the judicial officer discovers has physical custody of the minor child or who claims custody of or visitation rights with respect to a minor child of the marriage or domestic partnership, or to any minor child of the relationship.   (Cal.R.Ct. 5.24(e)(1).)  Joinder is not mandatory but discretionary if the judicial officer finds that it would be appropriate to determine the particular issue in the proceeding and that the person to be joined is either indispensable for the judicial officer to make an order about that issue or is necessary to the enforcement of any judgment rendered on that issue.  (Cal. Rule of Court 5.24(e)(2).)

The mechanics of joinder in a pending family court action are beyond the scope of this discussion. Joining a third party or a third-party request for joinder should be undertaken with the help of an attorney or the family law facilitator.

Grandparent and Other Nonparent Custody

Certain persons have preference when a judicial officer orders custody.   Family Code section 3040(a) gives preference as follows:  to the parents jointly; to one of the parents; if to neither parent , then to the person or persons in whose home the child has been living in a wholesome and stable environment; and, to any person or persons deemed by the judicial officer to be suitable and able to provide adequate and proper care and guidance for the child.

Grandparents and nonparents may gain custody of a minor child. There are two ways under this statute for a nonparent such as a grandparent to gain custody:  1)  if a nonparent can prove by clear and convincing evidence (see Rebuttable Presumptions and Standards of Proof) that custody to a parent would be detrimental to the child and custody to a nonparent is necessary to serve the best interests of the child; and, 2) if a nonparent can show by a preponderance of the evidence that the nonparty has taken care of the minor child’s emotional and physical needs as a parent on a daily basis for a substantial period of time and removing the child from that stable environment would harm the child, then the nonparty may be granted custody of the child, unless a parent can show by a preponderance of the evidence that custody to the parent would be in the best interest of the child.

According to Family Code section 3041:

A nonparent may petition the Superior Court for custody of a minor child.  However, if a parent objects to that nonparent having custody, the Court must determine that granting custody to a parent would be “detrimental to the child” and that granting custody to the nonparent is required to serve the best interest of the minor child.  (Family Code section 3041(a).)

The standard of proof in the determination that a parent’s custody would be detrimental to the child is by clear and convincing evidence.  (Family Code section 3041(b).) 

The phrase “‘detrimental to the child’ includes the harm of removal from a stable placement of a child with a person who has assumed , on a day-to-day basis, the role of his or her parent, fulfilling both the child’s physical needs and the child’s psychological needs for care and affection, and who has assumed that role for a substantial period of time.  A finding of detriment does not require any finding of unfitness of the parents.”  (Family Code section 3041(c).)  

Even if clear and convincing evidence does not exist that parental custody is “detrimental to the child,” if the Court finds by a preponderance of the evidence that a nonparent meets the requirements of Family Code section 3041(c), then the finding must be construed as being in the best interest of the child and that parental custody would be detrimental to the child unless a parent can show the contrary by a preponderance of the evidence. (Family Code section 3041(d).)  

Grandparent and Other Nonparent Visitation

As mentioned above, grandparental visitation request can be made in a section 3102 proceeding (when there is a deceased parent).  It can also be requested under either Family Code sections 3103 or 3104, depending on the circumstances.

Grandparental visitation also can be requested under Family Code section 3103 when a parent is already a party to a Superior Court proceeding identified in Family Code section 3021 (i.e.,, a petition for exclusive custody, paternity, divorce, legal separation, nullity of marriage, or under the Domestic Violence Prevention Act, or by complaint filed by the Department of Child Support Services to determine custody and visitation).   In a section 3103 proceeding, grandparental visitation may be ordered if such visitation is in the best interest of the minor child.  However, if the parents agree that such visitation is not in the best interest of the minor child, the grandparent must prove by a preponderance of the evidence that the visitation would be in the child’s best interest.

A grandparent can bring an independent action for visitation in a section 3104 proceeding, if a parent is not a party to a proceeding identified at Family Code section 3021 and the parents are not married.  Or, if the parents are married, then a grandparent can bring an independent action for visitation if one or more of the following circumstances exist:

1. the natural or adoptive parents are separated and living apart on a permanent or indefinite basis;
2. one of the parents has been absent for more than a month without the other parent knowing the whereabouts of the absent parent;
3. one of the parents joins in the petition;
4. the child is not residing with either parent; or,
5. the child has been adopted by a stepparent.

If the grandparent is able to petition independently for visitation in a section 3104 proceeding, visitation may be awarded if the judicial officer:

1. determines there is a preexisting relationship between the grandparent and his or her grandchild producing a bond that would make visitation in the best interest of the child; and,
2. balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.

However, if the natural or adoptive parents agree visitation should not be granted, or a parent awarded sole legal and physical custody in some other proceeding objects, or if no order exists and a parent with whom the child resides objects, then the grandparent must prove by a preponderance of the evidence that the visitation is in the best interest of the minor child.

Generally, a nonparent (other than a grandparent or specific persons related to a deceased parent) may not bring an independent action for visitation.  (White v. Jacobs (1988).)   A request for such nonparent visitation must be made in the course of a proceeding in which custody otherwise is or may be at issue.  (Perry v. Super. Ct. (1980).)   Such nonparent visitation may be ordered only when there is clear and convincing evidence that denial of nonparent visitation would be detrimental to the child.  (Marriage of Gayden (1991).)

Grandparents’ Duty to Pay Child Support Different from Parents’ Duty to Pay Child Support

Under Family Code section 3930, a grandparent has no duty to support his or her grandchild regardless of who has custody of the child. However, a grandparent who is a party to a custody or visitation proceeding can be ordered to pay for a child’s court-appointed counsel, for another party’s attorney’s fees to defend on any issues involving the grandparent, and for costs related to visitation, but not for counseling costs for a grandchild. (Marriage of Perry (1998).) If the grandparent has custody, then the parents will generally pay support individually to the grandparent (if the grandparent requests it) according the California uniform guideline amount (or according to any mutually-agreed-upon amount if several conditions are met).  A grandparent cannot be ordered to pay California uniform guideline child support.

Under Family Code sections 3103(g)(2) and 3104(i)(2), the duty of a grandparent who has been awarded visitation to pay child support is different from that of the parents.  If a grandparent has been awarded visitation, the judicial officer may order the grandparent to pay for transportation costs, necessary expenses such as medical expenses, day-care costs, and other necessities, for the purpose of the visitation. The judicial officer may also allocate these costs between the parent(s) and the grandparent(s).

Attorney Fees

Under Family Code section 2030, in a divorce, annulment or legal-separation proceeding, any party (except a governmental entity) may be ordered to pay attorney fees to another party when reasonably necessary to provide financial parity between the parties.  However, grandparents and other nonparents paying attorney fees and costs are limited to an amount reasonably necessary to assert or defend the issues related to that party, not the entire proceeding. (Marriage of Perry (1998) 61 Cal.App.4th 295, 310.)

Financial parity takes into account the following factors:  the respective incomes and needs of the parties; and any factors affecting the parties’ respective abilities to pay. source

GRANDPARENT CASE LAW 

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

Child’s Best Interest in Custody Cases

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Grandparents Rights to Grandchildren

Grandparent Visitation Rights (California Family Code 3102)

Are you a grandparent seeking a court ordered visitation with your grandchild? If you are, then it is important that you speak with a Wallin & Klarich  California family law attorney who can evaluate your case and advise you of your legal rights as a grandparent. In California, under Family Code section 3100, the family court may grant reasonable visitation rights to the grandparent of a minor child. The court may grant you reasonable grandparent visitation rights if either parent of a minor child is deceased. Even if neither parent of the minor child is deceased, the court may still grant you visitation rights. In order for the California family law court to grant you reasonable grandparent visitation rights with your grandchild, the court must find that there is a preexisting relationship between you and your grandchild. The court will balance the best interest of your grandchild when determining whether to grant your grandparent visitation request. Also, normally a grandparent cannot request visitation rights with his or her grandchild if the grandchild’s parents are married. However, there are exceptions to this general rule. It is important to note that if you are granted grandparent visitation by the California family law court and the circumstances change where none of the above listed exceptions apply, either parent of your grandchild can request that the court terminate the grandparent visitation order. If the parents request that the grandparent visitation order be terminated, the court must grant the parent’s request and end all of your visitation rights that had been given to you.

How to Ask for Grandparent Visitation in California

In California, the family law court will not automatically give a grandparent any visitation rights with his or her grandchild. In order to obtain grandparent visitation rights, you must first file a petition requesting grandparent visitation rights with the court. If a family law case between your grandchild’s parents has already been filed, such as a divorce or paternity case, you may join that case and ask for grandparent visitation rights. However, if a family law case has not been opened, then you must file a petition requesting grandparent visitation rights and open a case with the family court—in essence, you are starting a new case from the very beginning. Please note that unlike a divorce or paternity case, there is no official court form to petition the court for grandparent visitation. However, some counties provide a local court form that can be used as the petition. But if you happen to live in a county that does not provide a local court form, it is important that you hire an experienced family law lawyer to represent you and draft your petition for grandparent visitation.

Grandparent Visitation Resources:

• Advocates for Grandparent Grandchild Connection
• Resources for Grandparents from the AARP
• grandparentchildconnect.org

History of  Grandparent Visitation Rights in California

Historically in California, grandparent visitation has not always been permitted. In recent years, however, family dynamics have changed considerably.  Today households consist of family members of multiple generations. Often grandparents and non-parents are raising, supporting, or caring for children in the family. With the changing landscape, California law has evolved to address California custody and visitation disputes as they pertain to the rights of grandparents.

Notwithstanding any other provision of law, in a proceeding described in Section 3021, the court may grant reasonable visitation to a grandparent of a minor child of a party to the proceeding if the court determines that visitation by the grandparent is in the best interest of the child. See Family Law Code section 3103.

The key focus in all court decisions involving children is “what is in the best interest of the child?” California Family Law Code Section 3102 allows relatives (including grandparents) visitation over the objection of the surviving parent. If a parent has died, the court will consider both a deceased parent’s wishes and the surviving parent’s decision in approving or denying grandparent’s visitation rights. California law further confirms that grandparents do not lose their rights even when a stepparent adopts their grandchild.

California Family Code Section 3102 is relevant in the common situation where the parents of a deceased parent seek to have visitation rights as to the deceased parent’s child, over the objection of the surviving parent. The visitation rights that the grandparents seek are known as Grandparent Visitation. California Family Code Section 3102 currently allows relative (including grandparent) visitation over the objection of the surviving parent under certain circumstances. The California Supreme Court held that visitation of this nature is proper so long as in awarding visitation, the trial court gives special weight to the surviving parent’s decision in regard to supporting, or not supporting, a child’s relationship with relatives of a deceased parent, while keeping in mind what is in the child’s best interest. (See Hoag v. Diedjomahor (2011) DJDAR 15328) Historically, grandparent visitation did not always seem to be allowed.

Case History of Grandparent Visitation

On its face, Family Code section 3102 allows for a grandparent to have visitation with his or her grandchild where one parent is deceased. The practical application of this statute has been greatly curtailed by the United States Supreme Court case, Troxel v. Granville and its progeny. (Troxel v. Granville (2000) 530 U.S. 57.) As noted below, in cases where the surviving parent is not unfit and offers the grandparent meaningful visitation, the Courts are restricted under the Federal Constitution from entering any visitation order in favor of the grandparent in any fashion whatsoever.

The landmark U.S. Supreme Court case of Troxel v. Granville (2000) 530 U.S. 57  The Courts presume that a parent is the best person to recognize a child’s physical and emotional needs and make choices that serve the child’s best interests. Yet, not all parents are able to recognize and meet a child’s needs. In those cases, a grandparent may want to intervene.

Some form of grandparent rights are recognized in every state. However, there isn’t any federal law regulating grandparent visitation. What this means is that each state has some nuances in its rules governing grandparent rights. The closest thing to a federal grandparent visitation law comes out of the U.S. Supreme Court case Troxel v. Granville. In Troxel, the Supreme Court upheld the constitutionality of a broad grandparent visitation law out of Washington. Although the Washington law was upheld, the Troxel case required a parent’s preferences to be considered before awarding grandparent visitation. Also, under Troxel, grandparent visitation shouldn’t interfere with a parent’s basic rights. Some exceptions apply to the above rules if parents are deemed unfit.

Yes, grandparents can have visitation rights if the court determines that there was a pre-existing relationship between the grandparent and the child that has “engendered a bond,” and that it is in “the best interest of the child” to have a relationship with the grandparent. In plain English, that means that a judge, after hearing the evidence, determines that it is in the best interest of the child to continue to see his or her grandparents. The visitation, of course, has to be reasonable, and the parent(s) still retain the right to make decisions about their child.

As this process can be painful for all concerned, it may be in everyone’s best interest to try to resolve these issues out of court. Mediation between all parties is a good way to discuss the emotional needs and concerns of everyone involved and to work out a mutually agreeable solution. An experienced family law attorney can help you find a mediator that specializes in grandparent-grandchildren issues.

In Troxel, the United States Supreme Court granted review and affirmed the Washington Supreme Court’s decision. The United States Supreme Court found that since the Mother was a fit parent and that Mother “did not oppose visitation, but instead asked that the duration of any visitation order be shorter,” any visitation order would have been an “unconstitutional infringement on [Mother’s] fundamental right to make decisions concerning the care, custody, and control of her [children.]” (Troxel v. Granville, supra, 530 U.S at 71.) The United States Supreme Court did not remand the case for further proceedings and found that since the visitation order violated the constitution, there were no grounds to an enter a visitation order of any kind.  source

Family Code Section 3102 unconstitutional. Relevant California decisions that followed seemed to confirm Family Code section 3102’s unconstitutionality.

In Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242, the California Supreme Court disallowed a trial court order granting visitation to the minor child’s paternal grandparents. The trial court had erroneously dismissed the surviving parent’s concerns about visitation relating to the grandparents’ drinking, swearing, uncleanliness, and the child’s “uneasiness” after visits. The California Supreme Court further confirmed that the surviving parent’s concerns regarding visitation had to be accorded special weight.

In Punsly v. Ho (2001) 87 Cal.App.4th 1099, the California Supreme Court disallowed another trial court order granting visitation to a minor’s paternal grandparents. In this case, the California Supreme Court held that the trial court had erroneously failed to apply a presumption (or assumption) that the surviving parent’s visitation decisions were in the child’s best interest. The trial court was further said to have erroneously dismissed the surviving parent’s concerns about visitation. Punsly discussed the matter of when the surviving parent is to offer the grandparents a visitation opportunity. The grandparents argued that Troxel did not apply since the surviving parent did not offer them a visitation schedule until they had retained counsel. The Punsly court disagreed, noting that the proposal of a visitation plan by the surviving parent was voluntary. The court also noted that what is important for the purposes of awarding grandparent visitation is that the surviving parent offered a visitation plan at all, not the motivation or timing behind this offer. In Punsly v. Ho, the Court reversed the trial court’s decision to order visitation because of the surviving Mother’s “fitness as a parent and her willingness to voluntarily schedule visitation.” (Punsly v. Ho (2001) 87 Cal.App.4th 1099, 1111.) As in Troxel, the appeals court did not remand for further proceedings, but directed the trial court to vacate its order of visitation and enter a new order denying the visitation request altogether. There were no grounds to enter a visitation order of any kind.

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848 is another grandparent visitation case. There the surviving parent’s fitness as a parent had been confirmed. He simply did not want a court-imposed visitation schedule. The California Supreme Court held that the application of Family Code section 3102 to establish a visitation schedule over the surviving parent’s objection violated his fundamental parenting right to make decisions about the care, custody, and control of his daughter. The court came to this conclusion because the surviving parent was fit, had not sought to cut off grandparent visitation completely, and there was no strong evidence against the presumption to favor a fit parent’s parenting decisions.  In Kyle O. v. Donald R., the Court held that “a fit parent…who agreed to allow visitation, had the fundamental right as a parent to prefer flexible unscheduled visitation.” (Kyle O. v. Donald R (2000) 85 Cal.App.4th 848, 863-864.) When the trial court imposed a schedule over the objection of father, the appeals court held that application of Family Code section 3102 “unduly infringed upon [Father’s] fundamental parenting right to make decisions about the care, custody and control of his daughter.” (Id. at 864.) As in Troxel and Punsly v. Ho, the trial court was directed to vacate its order of visitation and enter a new order denying the visitation request altogether. There were no grounds to enter a visitation order of any kind.

In IanJ. v. Peter M., the Court of Appeals held that “requiring unsupervised visitation [over the objection of the surviving parent] unlawfully intrudes on [the surviving parent’s] right to make decisions with respect to [the children’s] well-being…” The Court held that “the grandparents…were required to show clear and convincing evidence that…unsupervised visitation…was in the child’s best interests.” The Court found that since the surviving parent’s concerns about the grandparents were legitimate, the surviving parent’s insistence on supervised visitation had to be respected. Often, we deal with cases where both parents are alive and only one parent objects to grandparent visitation. The law in Troxel doesn’t apply in these types of situation because one surviving parent wants the visitation. This usually results in the grandparents joining the case and receiving some sort of visitation if the court deems it in the best interests of the child.

Grandparent visitation can be quite complicated. If you have questions about grandparent visitation in California, contact our firm and we can help you. source

Historical Lessons Regarding Grandparent Visitation

The lesson of these constitutional decisions is two-fold. First, Family Code Section 3102 is generally valid, but is unconstitutional (invalid) as applied to circumstances similar to those present in each of the above-mentioned cases. Second, as noted in Hoag, grandparent visitation is valid so long as the trial court awards it by giving special weight to a parent’s decision in regard to supporting, or not supporting, a child’s relationship with relatives of a deceased parent, while keeping in mind what is in the child’s best interest.

The California Family Code on Grandparent Visitation

The general provision allowing a grandparent visitation with his or her grandchild can be found under California Family Code section 3100. This section states that the court, in its discretion, may grant reasonable visitation rights to another person having an interest in the welfare of the child. A grandparent can be considered as a “person having an interest in the welfare of the child” because the grandparent is related to the child.

What If One the Parents of Your Grandchild has Died?

If either parent of an un-emancipated minor child (a child who has not been declared liberated from his or her parents parental authority) 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 in the best interest of the minor child. Although you, as the grandparent, may propose a visitation schedule with your grandchild that you believe is reasonable, it is up to the court’s discretion to determine and make a finding of what a “reasonable visitation” is in your case. Additionally, Family Code section 3102 does not apply if the child has been adopted by a person who is not the stepparent or grandparent of the child. Moreover, any visitation rights that were granted before the adoption of the child by a person who is not the child’s stepparent or grandparent will automatically terminate upon the child’s adoption.

Both Parents are Still Living and a Case between the Grandchild’s Parents has already been Filed with the Court

Family Code 3103 states that if there is already a family law case filed between the child’s parents, the court may grant reasonable visitation to a grandparent of a minor child of a party to the proceeding if the court determines that visitation by the grandparent is in the best interest of the child. When pursuing grandparent visitation through a case that already exists between the parents, you must give notice of the petition to the parent, any stepparent, and any person who has physical custody of your grandchild. The notice must be given by certified mail, return receipt requested, postage prepaid, to the person’s last known address, or to the attorneys of record of the parties to the proceeding. It is also crucial to note that under Family Code 3103, there is rebuttable presumption (meaning that the presumption can be invalidated) that the visitation of a grandparent is not in the best interest of a minor child if your grandchild’s parents agree that the you should not be granted visitation rights.

What If There Is No Case Filed with the Court

Under Family Code Section 3104, the grandparent must open a case by filing a petition. The court may grant reasonable visitation rights to the grandparent if the court does both of the following:

1. Finds that there is a preexisting relationship between the grandparent and the grandchild that has produced a bond such that visitation is in the best interest of the child; AND 2. Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority A petition for grandparent visitation may not be filed while the natural or adoptive parents are married unless one or more of the following circumstances exist:

• The parents are currently living separately and apart on a permanent or indefinite basis

• One of the parents has been absent for more than one month without the other spouse/parent knowing the whereabouts of the absent spouse/parent

• One of the parents joins the petition with you

• Your grandchild is not residing with either parent

• Your grandchild has been adopted by a stepparent

At any time when a change of circumstances occurs, such that none of the above listed circumstances exist, the parent or parents of your grandchild may request that the court terminate your grandparent visitation rights. The court will grant the parents’ request for termination. When opening a new case with the court and requesting grandparent visitation, you must give notice of the petition for grandparent visitation to each of the child’s parents, any stepparent, and any person who has physical custody of your grandchild by personal service. Like Family Code section 3103, there is a rebuttable presumption that the visitation of a grandparent is not in the best interest of a minor child if the natural or adoptive parents of the child agree that you should not be granted visitation rights. Additionally, there is another rebuttable presumption affecting the burden of proof that grandparent visitation is not in the best interest of a minor child if the parent who has been awarded sole legal physical custody of your grandchild in another proceeding, or the parent with whom the child resides if there is currently no effective custody order, objects to grandparent visitation. Lastly, like Family Code section 3104, when a court orders grandparent visitation pursuant to this section, the court, in its discretion, may:

• Allocate the percentage of grandparent visitation between the parents for purposes of calculating child support under Family Code 4050; AND

• Order a parent or grandparent to pay to the other, an amount for the support of the minor child. “Support” means costs related to the visitation, such as transportation costs, medical expenses, day care costs, and other necessities related to the basic expenses for the child

A Parent’s Fundamental Right to Raise His or Her Child is Not Unconditional

California Family Code section 3105 provides that a parent’s fundamental right to provide for the care, custody, companionship, and management of his or her children, while compelling, is not absolute. Children have a fundamental right to maintain healthy, stable relationships with a person who has served in a significant, judicially approved parental role. cited

Grandparent Visitation Rights

In family law cases (as well as “civil” cases generally), either party is allowed to request that the court “join” someone or some entity to the family law case. When the court “joins” a person or entity to a case it has the effect of that person/entity becoming a party to the case. source

In order for a grandparent to seek custody rights of a child they must be joined as a third party.  Grandparent rights are not automatic, but are many times appropriate.  Certain qualifications must be met in order to be able to join as a third party, and then gain physical custody rights.  This is a multi-step process that demands an attorney with experience in the area.

Grandparents’ Rights in California

Grandparents have rights to visitation, custody, adoption, and guardianship or their grandchildren. Grandparents also have a right to have their grandchildren financially supported by a parent of a child while the child is in the grandparent’s physical custody; however, grandparents’ rights are not absolute.

This article briefly discusses a grandparent’s rights to custody, adoption, and guardianship of a grandchild, but but the focus of this article concerns grandparents’ rights to visitation and support of a grandchild. For more information on a grandparent’s rights to custody, adoption, or guardianship, please visit those corresponding pages.

For a grandparent to have rights to visitation or support of a grandchild the grandparent must first prove to the family court judge the following:

• There is a preexisting relationship between the grandparent and grandchild such that has engendered bonds between the grandparent and grandchild, and

• It is in the best interest of the child to visit his or her grandparent, as balanced against the rights of the parent, or parents of the child.

Thus, if there is no preexisting relationship between the grandparent and the grandchild, or, if it is not in the best interest of the grandchild to visit with his or her grandparents, then the family court judge may deny the grandparents the right to visit with the grandchild.

Also, if the grandchild’s parents are married, the grandparent must also prove at least one of the following factors before a family court judge will entertain grandparents’ rights to visitation and support (one of these factors must be present in addition to the two elements listed above if the child’s parents are married):

• The parents are not living together
• The parent’s whereabouts are unknown for at least a month
• One of the parents joins the grandparents’ petition
• The child does not live with either parent, or
• The child has been adopted by a stepparent

Note: If a grandparent has visitation rights established by the famil court, and the situation changes after establishing the grandparents’ rights, and none of the above listed exceptions applies, one, or both, parents can ask the court to end the grandparents’ rights.

Grandparents rights to visitation or support may not be established if the grandchild has been adopted by a person who is not related to the biological mother or father.

Also, before a grandmother or grandfather, or both, may be heard in family court, the court will require all the parties to attend mediation. If the parent, or parents, do not have a good relationship with the grandmother or grandfather, or both, then mediation can be handled in separate sessions so as to avoid any negative conflict between the parties.

Furthermore, establishing grandparents’ rights is the proper vehicle for maintaining visitation with grandchildren. When the mother or father, or both, are dangerous to their child or children, it is better for the grandparents to obtain child custody or a guardianship over the grandchild.

Finally, the grandparent must also prove that visitation is generally being denied by the parent or parents. In other words, if a grandparent typically visits with his or her grandchild a few times a year without objection by the parents then the grandparent will be denied extra visitation by the court. The idea is that if the existing relationship between the grandparent and grandchild consists of very few visits then that is the limit of the bond that has been established between grandparent and grandchild. However, if a parent reduces the number of visits or denies visits altogether then a grandparent can request from the family law judge that the grandchild maintain the level of visits previously enjoyed by the grandparents. If all visits have been denied then the family law judge can establish reasonable visitation.

Grandparents Rights v. Custody of Grandchildren Rights

When we speak of grandparents’ rights we are usually talking about the right to visit a grandchild, or the right to receive child support for your grandchild from the child’s parent or parents. The right to visit with grandchildren does not include the right to make decisions for them. If a grandparent is seeking to have the legal right to make legal decisions for the grandchild then the grandparent may request an order for custody of the grandchild. With custody, the grandparent will have the right, either solely, or jointly with the parent of the child, to make legal decisions on health care, schooling, religious activities, extra curricular activities, and more. It is more difficult to establish legal custody of a grandchild then to establish grandparents’ rights to visitation and support. Child custody issues are covered in more detail under child custody law.

Grandparents’ Rights v. Adopting of Grandchildren

As stated above, grandparents rights to visitation or support does not give the grandparent the right to legal custody of the grandchild. Child custody may sometimes be established for grandparents but that custody is often shared with the parent or parents. If the grandparent seeks to terminate the parents’ rights then an adoption of a grandchild by a grandparent may be requested. An adoption is a complete termination of the parents’ rights. An adoption of a grandchild by a grandparent gives the grandparent all the legal rights to a grandchild that the parent would otherwise enjoy. Adoptions can be complex in terms of procedure and only a qualified adoption and family law attorney should handle these types of cases. Adoptions are covered in more detail under adoption law.

Grandparents’ Rights v. Guardianship Rights

Again, establishing grandparents rights to visitation or support  will not give the grandparent any rights other than the right to visit the grandchild or have the grandchild financially supported while in the physical custody of the grandparent. For this reason, a request for legal guardianship of the grandchild is sometimes preferred. A guardianship is a legal relationship between a minor child and a guardian that gives the guardian certain rights and obligations regarding the child. A guardianship does not sever the legal relationship that exists between a child and his or her biological parents. Instead, it co-exists with that legal relationship, similar to joint legal custody but limited in scope. Guardianships may be temporary or permanent. Guardianships may be used for specific purposes such as to manage a child’s financial affairs or ensure that the child attends school. Usually a grandparent guardian will visit with the grandchild who is protected, also called the ward, but it is not necessary. Guardianships are covered in more detail under guardianship law.

How to File (Petition) for Grandparents Rights

To establish grandparents rights to visitation or support, the petitioner must fill out the proper family law forms and legal documents. Depending on the circumstances, those forms and legal documents can include any or all of the following: FL 100, 105, 300, 311, 341, UCCJEA, Assignment Sheet (usually a local court form), CII criminal background sheet (usually a local court form), Joinder Pleadings, and more. The law and procedure for establishing grandparents’ rights can be difficult to navigate and it is always best to use a family law attorney who is experienced with establishing grandparents’ rights.

We have included much of the pertinent law on grandparents’ rights to visitation and support at the right side of this page. For more information on California grandparent’s rights, guardianships, adoptions, or child custody (legal and physical), please contact the divorce and family law attorneys at Dorado & Dorado, APLC.

Our experienced divorce and family law attorneys have successfully represented hundreds of families in the Inland Empire. Our experience includes representation of grandparents seeking to establish visitation and support of their grandchildren as well as representation of mothers and fathers seeking to sever grandparents’ rights. We are among the largest family law firms in the San Bernardino and Riverside County area. Our consultations are provided at no cost seven days a week. source

Distinguishing Request for Custody from Request for Visitation

FL 3100(a) In making orders [guardianship]…the court shall grant reasonable visitation rights to a parent unless it is shown that the visitation would be detrimental to the best interest of the child.

FL 3102(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 child’s best interest…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.

FL 3103(a) Notwithstanding other law…the court may grant reasonable visitation to a grandparent of a minor child of a party to the proceeding if the court determines that visitation by the grandparent is in the best interest of the child.

FL 3103(c) The petitioner shall give notice of the petition to each of the parents of the child, any stepparent, and any person who has physical custody of the child, by certified mail, return receipt requested, postage prepaid, to the person’s last known address, or to the attorneys of record of the parties to the proceeding.

FL 3103(d) There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the child’s parents agree that the grandparent should not be granted visitation.

FL 3103(e) Visitation rights may not be ordered under this section if that would conflict with a right of custody or visitation of a birth parent who is not a party to the proceeding.

FL 3103(g) When a court orders grandparental visitation pursuant to this section, the court in its discretion may, based upon the relevant circumstances of the case, allocate the percentage of grandparental visitation between the parents for purposes of the calculation of child support, and/or order a parent or grandparent to pay to the other, an amount for the support of the child or grandchild.

FL3104(a) On petition to court by a grandparent of a minor child, the court may grant reasonable visitation rights to the grandparent if the court does both of the following: 1) Finds that there is a preexisting relationship between the grandparent and grandchild that has engendered a bond such that visitation is in the child’s best interest, and 2) balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.

FL3104(b) A petition for visitation under this section shall not be filed while the natural or adoptive parents are married, unless one or more of the following circumstances exist: 1) the parents are currently living separately and apart on a permanent or indefinite basis, 2) one parent has been absent for more than one month without the other spouse knowing the whereabouts of the absent spouse, 3) one of the parents joins in the petition with the grandparents, 4) the child is not residing with either parent, 5) The child has been adopted by a stepparent, 6) One of the parents is incarcerated or institutionalized.

FL3104(e) There is a rebuttable presumption that the visitation of a grandparent is not in the best interest of a minor child if the natural or adoptive parents agree that the grandparent should not be granted visitation rights.

FL3104(f) There is a rebuttable presumption affecting the burden of proof that the visitation of a grandparent is not in the best interest of a minor child if the parent who has been awarded sole legal and physical custody of the child in another proceeding, or the parent with whom the child resides if there is currently no operative custody order objects to visitation by the grandparent.

FL 3105(a) The law finds and declares, that a parent’s fundamental right to provide for the care, custody, companionship, and management of his or her children, while compelling, is not absolute. Children have a right to maintain healthy, stable relationships with a person who has served in a significant, judicially approved parental role.

Do Grandparents Have Visitation Rights Only If The Parents Are Divorced?

 In general, grandparents cannot file for visitation rights while the grandchild’s parents are married. But there are exceptions, like:

• The parents are living separately;
  • A parent’s whereabouts are unknown (and have been for at least a month);
  • One of the parents joins the grandparent’s petition for visitation;
  • The child does not live with either of his or her parents; or
  • The grandchild has been adopted by a stepparent.

How Does A Grandparent Petition The Court For Relief?

In most situations, the parents of the child will already have an existing case pending before the court (i.e., dissolution of marriage, or custody/support case). If there is an already existing case, the grandparent must file a Motion for Joinder in order to be “joined” to the pending divorce/custody matter.

Under well-established statutory and case law, any party with physical custody or claiming custody or visitation rights with respect to a minor child of the parties’ relationship must be ordered joined. Under California Rules of Court section 5.24(e)(1):

“[T]he court must order that a person be joined as a party to the proceeding if the court discovers that person has physical custody or claims custody or visitation rights with respect to any minor child of the marriage, domestic partnership, or to any minor child of the relationship.” (Cal. Rules of Court §5.24(e)(1)(a).)

However, “before ordering the joinder of a grandparent of a minor child in the proceeding under Family Code section 3104, the court must take the actions described in section 3104(a). (Cal. Rules of Court §§5.24(e)(1)(b).), i.e.,
the court may grant reasonable visitation rights to the grandparent if the court does both of the following:

• (1) Finds that there is a preexisting relationship between the grandparent and the grandchild that has engendered a bond such that visitation is in the best interest of the child
• (2) Balances the interest of the child in having visitation with the grandparent against the right of the parents to exercise their parental authority.

If there is no dissolution of marriage or custody/support case pending before the Court, the grandparent must petition the court by filing his/her own individual petition for visitation rights (as opposed to petitioning to be joined to a pre-existing case).

What Are The Benefits Of Having A Grandparent-Child Relationship?

There are countless benefits from having a grandparent involved in a child’s life. First, there is an immediate biological linkage between the grandparent and the child. Second, the presence of grandparents in the formative years of children strongly helps in their character building. Third, grandparents are often the greatest supporters of the child’s interests because of their unconditional love for their grandchild.

Finally, grandparents are often the best teachers in the child’s life when it comes to cultural heritage and family history. Grandparents are a great source of the family history – precious knowledge to have. source

When Access to Grandchildren Becomes an Issue

Grandparents play an important part in enriching the lives of their grandchildren. Sadly, some grandparents are prevented from seeing or spending time with their grandchildren. This can, understandably, be upsetting for both grandchildren and grandparents.

There may be several reasons why grandparents are excluded from the lives of their grandchildren. Examples are an ongoing divorce proceeding between the child’s parents or unresolved issues between the child’s parents and the grandparents.

Unlike parents, grandparents do not automatically have legal authority concerning their grandchildren. The rights of grandparents concerning their grandchildren are determined by the family law in each state.

Enforcing Grandparents’ Rights: What You Need to Know

Many states allow grandparents to have visitation rights and, in some situations, custody. Learn about the consequences of parents violating a court order for grandparents to have access to their grandchildren.Grandparents often seek court-ordered visitation or custody when their adult child refuses to allow them to visit with or raise their grandchildren. If a court rendered an order for you, the grandparent, either custody or visitation, and you’re prevented from exercising those rights, you have recourse to enforce the order.

Consider meeting with a private mediator or counselor first

In mediation, parents and grandparents meet with a neutral person. Look for a family mediator – someone with experience mediating with families. If mediation works out, it can avoid court and is more likely to help you build a better relationship.

If you decide to start a court case, it can often cause tension between you and the child’s parents. And, the judge may not order the visits you want. If the parents are open to mediation, it can be best for everyone.

• ^[i] Cal. Fam. Code § 3102
• ^[ii] Cal. Fam. Code § 3104(b)
• ^[iii] Cal. Fam. Code § 3104(b); Marriage of Harris (2004) 34 Cal. 4th 210, 211
• ^[iv] Cal. Fam. Code § 3103
• ^[v] Cal. Fam. Code § 3104(b)(5); Finberg v. Manset (2014) 223 Cal. App. 4th 529, 532
• ^[vi] Cal. Fam. Code § 3102(c)
• ^[vii] See Punsly v. Ho (2001) 87 Cal. App. 4th 1099, 1108; Kyle O. v. Donald R. (2000) 85 Cal. App. 4th 848, 863; see also Ian J. v. Peter M. (2013) 213 Cal. App. 4th 189, 204.
• ^[viii] Marriage of Harris (2004) 34 Cal. 4th 210, 222
• ^[ix] Cal. Fam. Code § 3103(a).
• ^[x] Cal. Fam. Code § 3103(e), (h); see also Cal. Fam. Code § 8512.
• ^[xi] Cal. Fam. Code § 3103(d).

By Jennifer Wolf cited 

What is the Best Interests of the Child Checklist?

By Jennifer Wolf source 

The Best Interests of the Child is a standard that the courts use to determine what’s best for the kids when parents are disputing issues such as custody, access, support, special expenses, etc. Rarely do parents go to court over disputes, but when they do, the judge will look at family relationships, primary caretaking responsibilities, cultural and religious relationships, special needs, and such to make his or her ruling.

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

Best Interest Factors When Deciding Custody

Each state has its own set of factors—typically referred to as the best interest factors—that judges must evaluate when deciding custody. Although states may differ slightly, the most common factors include:

• the love, affection, and emotional ties between each parent and the child
• each parent’s ability to provide the child with a home, food, clothing, and the necessities of life
• the child’s preference (this factor is restricted in some states and greatly depends on the child’s age, mental capacity, and willingness to provide an opinion)
• each parent’s ability to give the child loving support, parental guidance, and discipline
• stability and consistency (courts like to keep the child’s routine consistent, so if the child has routinely lived with one parent and has developed a schedule, school, and childcare routines, the court is less likely to disrupt the child’s life with a change in custody)
• each parent’s moral fitness, drug and alcohol history, and the mental and physical health
• whether either parent has a history of child or domestic abuse
• each parent’s willingness to facilitate a healthy and continuing relationship between the child and the child’s other parent
• the child’s age and any special needs (younger children may require nursing and special needs children require specialized care that not all parents are capable of providing)
• the history of the child’s relationship with each parent. For example, has the child’s mother been a stay-at-home parent and bonded with the child to the extent that awarding substantial or sole custody to the child’s other parent would be detrimental?
• the child’s home, school, and community record, and
• the child’s relationships with other family members in the home, such as stepparents and siblings.

It’s important to understand that no single factor is more important than the other. Instead, the court will look at all the factors, facts, and family history to decide whether one or both parents are best suited to care for the child on a day-to-day basis. Additionally, each court can evaluate any other factors that the judge believes will affect the child’s best interests.

Some Courts Ask for Help

Some states allow the judge to ask a division of the family court for assistance with evaluating what’s in a child’s best interest when it comes to deciding custody.

For example, in Michigan, parents with custody disputes must file a motion with the Friend of the Court, which begins the process of a custody investigation. During the investigation, a social worker specially trained in custody and parenting time will meet separately with each parent and the child to evaluate what’s in the child’s best interest for custody and parenting time. At the end of the investigation, the social worker will prepare a written recommendation detailing the findings of the interviews (listing findings for each best interest factor) and will submit it to the court. In most cases, the judge adopts the worker’s recommendations, even if one parent objects.

Other states require parents to attend court-ordered mediation before asking the judge to decide. Mediation is a process where a neutral third-party helps facilitate a discussion between the parents about custody and helps the parents reach an agreement instead of asking the court to do it for them.

Custody mediators are trained in their state’s best interest factors and will help the parents understand how a judge would decide custody based on those factors, which avoids costly and needless litigation in court.

Although you may think you know what’s in your child’s best interest, it may not line up with your child’s other parent or what the court determines. Consider hiring an experienced family law attorney before you file for custody or try to resolve a custody dispute on your own. cited

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

Each Parent’s Ability to Meet Children’s Needs

The most basic part of the “best interests” standard is that custody decisions should serve the children’s health, safety, and welfare. Judges will look at whether one or both parents are able to handle a child’s special educational, medical, mental health, and other needs.

Children’s Relationship With Both Parents

Many states have an explicit policy of encouraging frequent and continuing contact between children and their divorced or separated parents. In pursuit of that goal, judges will consider several factors related to the past and present parent-child relationships.

Parents’ Willingness to Support Each Other’s Relationship With Their Children

Judges will look at the parents’ history of cooperating—or not— with each other around their parenting schedule. For instance, judges might want to know things like whether one parent interferes with visitation in any way.

Judges will also look for evidence of each parents’ willingness to foster a good relationship between their child and the other parent. Is one parent bad-mouthing the other in front of the kids? Does one parent tend to start arguments when picking up or dropping off the child with the other parent?

The more cooperative parents will usually have an edge in a custody dispute. And parents who are obviously trying to alienate a child from the other parent—or who just can’t refrain from undermining the other parent’s relationship with the kids—will learn the hard way that judges don’t look kindly on that type of behavior.

Parents’ Relationships With Their Children Before Divorce

Judges will look at each parent’s history of taking care of and spending time with their children on a day-to-day basis. Sometimes, parents who haven’t been much involved with their kids’ lives suddenly develop a strong desire to spend more time with the children once the marriage has ended.

In many cases, this desire is sincere, and a judge will respect it—especially if the parent has been dedicated to parenting during the separation period. But the judge will definitely take some time to evaluate the situation to make sure that a parent isn’t requesting custody primarily to win out over the other parent, and that a parent with little experience of daily caretaking can follow through with those new-found wishes.

History of Abuse or Neglect

Obviously, when there’s clear evidence of child abuse or neglect, a judge will limit the abusive parent’s contact with the children. If judges do award visitation in these cases, it will usually be supervised and structured in a way to protect the children from future emotional or physical harm.

Domestic violence against the other parent will also play into custody decisions, particularly when the kids have witnessed the abuse..

Children’s Need for Continuity and Stability

When it comes to children, judges are big on the status quo, because most of them believe that piling more change on top of the traumatic transition of divorce generally isn’t good for kids. Among other things, judges may look at the child’s ties to the current school and community.

So if you’re arguing that things are working fine, you’ve got a leg up on a spouse who’s arguing for a major change in the custody or visitation schedule that’s already in place.

Several other factors that judges consider are related to children’s need for stability after divorce.

Each Parent’s Living Situation

There’s a bit of a chicken-and-egg dilemma surrounding the issue of which parent keeps the family home and how that affects custody. Often, the judge awards the home to the parent with physical custody of the children, because that will provide stability and continuity in the children’s lives. Other times, the judge awards custody to the parent who’s going to stay in the family home, for the same reason.

Whether you’re the “out-parent” (the one who isn’t staying in the family home), or neither you nor your ex were able to keep the house after divorce, you’ll need to prove that your current living situation would be a good place for the children to spend a lot of time if you want primary or shared custody. Don’t expect to get that result if you’re crashing in your best friend’s guest room while you get back on your feet after the divorce.

At the same time, most judges will try to avoid penalizing parents who can’t afford a nice home with an ideal set-up for kids. (It’s also worth noting that the child support laws in many states allow judges to consider the differences in living standards between the parents’ households when they’re deciding on the amount of child support in cases where the kids will spend time with both parents.)

How Far Apart the Parents Live From Each Other

The proximity of your home to your spouse’s may also factor in to the judge’s custody decision. The closer you are to each other, the more likely it is that the judge will order a time-sharing plan that gives both parents significant time with the kids. When parents live in the same community, their children can continue with their same social, sports, and religious activities regardless of which parent they’re staying with on which day. Geographical distance becomes more important as kids get older and maintain stronger bonds with their friends.

It’s also less taxing on the children to go back and forth between parents who don’t live far apart.

The Children’s Preferences

Depending on the state and the children’s maturity, judges may talk to kids to find out where they want to live and how much time they want to spend with each parent. Or judges may learn about the children’s opinions from a custody evaluator.

Some states require judges to consider children’s custody preferences when they’ve reached a certain age, but they may listen to younger children’s view when it’s appropriate. In other states, the requirement isn’t about the child’s age as much as the ability to express an opinion based on sound reasoning—not on things like which parent will let them stay up late.

Still other states disapprove of bringing the children into custody decisions at all.

Does the Age of a Child Matter in Custody Decisions?

The “tender years” doctrine—the idea that young children should stay with their mothers—has long been officially out of fashion. The gender of the parents is not a factor to be considered in custody decisions, but some states still allow judges to consider the children’s age. And some judges continue to believe that younger children should live with their mothers, especially when the mother has been the primary caregiver. Certainly, it’s not likely that a father would be awarded sole custody of a nursing baby.

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

Best Interest of the Child Standard –

Test for the Factors Weighed by California Courts Under Family Code Sections 3011, 3020, 3040

Parents engaged in custody disputes frequently charge into court with a list of reasons supporting their position that the court should grant them custody of their child rather than the other parent.  These same parents frequently leave the courthouse without the orders they requested, wondering why nobody cares about their compelling and well-thought-out list.

Here is the not-so-secret reason nobody cares about that list: the list doesn’t address the factors the court considers when making child custody orders in California.  In truth, the list most likely focuses on the faults of the other parent rather than providing the court with any legally relevant information regarding the child.

Checklist for Parents Seeking Custody of Minor Children Under California Family Code 3011, 3020, 3040

The function of the family court is not to change, fix, or judge parents but to dispose of their disputes at a given point in time.  California family courts are wholly unconcerned about the personal grievances parents in a custody dispute have against one another.  Instead, the courts are guided by the factors and standards of the California Family Code.

Guide to Best Interest Standard – Family Code 3011, 3020, 3040

The Best Interests of the Child Standard (BIC) is not found in only one code section or case; it is a compilation of many different Family Code sections and case law. However, the standard primarily arises out of Family Code 3011, 3020, and 3040. These sections are used by family courts when making and modifying child custody orders.

The child’s best interest depends partly on the health and safety of the child’s mind and body (i.e. mental and physical). The family court considers how well the parents can keep a livable home and meet basic food, clothing, medical, and education needs of the child.

Of course, any issues having to do with drug or alcohol problems, sexual abuse, or any kind of domestic violence will be considered.

If the judge thinks the child is mature enough, the child’s own wishes must be a factor in the decision.

Below, each of the code sections making up the BIC Standard is unraveled:

California Family Code Section 3011 – Welfare of the Child

Family Code 3011 provides a broad non-exhaustive list of factors for California family courts to consider in making a determination of what custody and visitation orders are in the best interests of a child.  This section is the root of the commonly referenced “Best Interest Standard” in California family law jurisprudence, and provides a road-map for custody attorneys, child custody mediators, parents, and judges.

While it may seem axiomatic for the court to consider the health, safety, and welfare of a child in making orders regarding where and with whom a child will live, this section mandates the consideration.  Section 3011 also creates a rebuttable presumption against awarding custody to parents who have substance abuse problems – implying that the California State Legislature views substance abuse as a crisis directly impacting the safety and well-being of children.

The best interests of the child, as a matter of public policy in California, always trumps the rights and interests of parents.  However, Section 3011 also creates protections for parents/guardians seeking custody of a child in family court by giving the court discretion to require independent corroboration as a prerequisite to considering allegations of abuse.  A history of abuse may also trigger other presumptions affecting custody of a child under the Family Code, such as those outlined in Family Code 3044 regarding domestic violence findings.

Family Code Section 3011 provides that:

(a) In making a determination of the best interests of the child in a proceeding described in Section 3021, the court shall, among any other factors it finds relevant and consistent with Section 3020, consider all of the following:

(1) The health, safety, and welfare of the child.

(2)(A) A history of abuse by one parent or any other person seeking custody against any of the following:

(i) A child to whom the parent or person seeking custody is related by blood or affinity or with whom the parent or person seeking custody has had a caretaking relationship, no matter how temporary.

(ii) The other parent.

(iii) A parent, current spouse, or cohabitant, of the parent or person seeking custody, or a person with whom the parent or person seeking custody has a dating or engagement relationship.

(B) As a prerequisite to considering allegations of abuse, the court may require independent corroboration, including, but not limited to, written reports by law enforcement agencies, child protective services or other social welfare agencies, courts, medical facilities, or other public agencies or private nonprofit organizations providing services to victims of sexual assault or domestic violence. As used in this paragraph, “abuse against a child” means “child abuse and neglect” as defined in Section 11165.6 of the Penal Code and abuse against any of the other persons described in clause (ii) or (iii) of subparagraph (A) means “abuse” as defined in Section 6203.

(3) The nature and amount of contact with both parents, except as provided in Section 3046.

(4) The habitual or continual illegal use of controlled substances, the habitual or continual abuse of alcohol, or the habitual or continual abuse of prescribed controlled substances by either parent. Before considering these allegations, the court may first require independent corroboration, including, but not limited to, written reports from law enforcement agencies, courts, probation departments, social welfare agencies, medical facilities, rehabilitation facilities, or other public agencies or nonprofit organizations providing drug and alcohol abuse services. As used in this paragraph, “controlled substances” has the same meaning as defined in the California Uniform Controlled Substances Act, Division 10 (commencing with Section 11000) of the Health and Safety Code.

(5)(A) When allegations about a parent pursuant to paragraphs (2) or (4) have been brought to the attention of the court in the current proceeding, and the court makes an order for sole or joint custody to that parent, the court shall state its reasons in writing or on the record. In these circumstances, the court shall ensure that any order regarding custody or visitation is specific as to time, day, place, and manner of transfer of the child as set forth in subdivision (c) of Section 6323.

(B) This paragraph does not apply if the parties stipulate in writing or on the record regarding custody or visitation.

(b) Notwithstanding subdivision (a), the court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interests of the child.

Family Courts Cannot Consider Sex, Gender, Gender Identity, Gender Expression, or Sexual Orientation

Arguably the most important take-away from Section 3011 is subsection (b), prohibiting the court from considering a parent or guardian’s sex, gender identity, gender expression, or sexual orientation in determining the best interests of the child.

This subsection coupled with the proclamation of Family Code 3010 that a mother and father are “equally entitled to the custody of the child” expresses the clear California legislative declaration that historical bias in favor of mothers and against LGBTQ parents is not consistent with the public policy of the State of California.  This notion is again addressed in Section 3020 and Section 3040 presumably because of the long-standing bias and perceived bias in custody matters.

California Family Code 3020 – Children Should Have Frequent and Continuing Contact with Both Parents and Have a Right to Be Safe and Free From Abuse

The “frequent and continuing contact” language of Section 3020 is commonly utilized by judges, and custody attorneys in family court when requesting and making child custody orders.

At its core, this section is putting California on notice that parents are expected to work together in raising children even when the parents are not in a relationship (i.e. married, dating, living together, etc.), and it is presumed to be in a child’s best interest to see both parents regularly unless there is a legally valid reason (i.e. abuse, substance abuse, etc.) otherwise.

(a) The Legislature finds and declares that it is the public policy of this state to ensure that the health, safety, and welfare of children shall be the court’s primary concern in determining the best interests of children when making any orders regarding the physical or legal custody or visitation of children. The Legislature further finds and declares that children have the right to be safe and free from abuse, and that the perpetration of child abuse or domestic violence in a household where a child resides is detrimental to the health, safety, and welfare of the child.

(b) The Legislature finds and declares that it is the public policy of this state to ensure that children have frequent and continuing contact with both parents after the parents have separated or dissolved their marriage, or ended their relationship, and to encourage parents to share the rights and responsibilities of child rearing in order to effect this policy, except when the contact would not be in the best interests of the child, as provided in subdivisions (a) and (c) of this section and Section 3011.

(c) When the policies set forth in subdivisions (a) and (b) of this section are in conflict, a court’s order regarding physical or legal custody or visitation shall be made in a manner that ensures the health, safety, and welfare of the child and the safety of all family members.

(d) The Legislature finds and declares that it is the public policy of this state to ensure that the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative is not considered in determining the best interests of the child.

Family Code 3020 doubles down on Section 3011 by declaring that the chief concern of the State with regard to custody of children is the “best interests” of the minor children.

California Family Code 3040 Grants the Court Wide Discretion to Choose Visitation Schedules for Children

The commonly misconstrued language of Family Code Section 3040, subsection (a)(1), is often incorrectly applied by both litigants and attorneys alike.  The plain language seems to create a presumption that it is in the best interest of children for parents to share joint legal and physical custody.

Further reading of the section is necessary to ascertain the true legislative intent, however, as subsection (d) declares that Family Code 3040 does not establish a preference or presumption in favor of joint legal or physical custody, but grants the court and family “the widest” discretion to choose a parenting plan consistent with the best interests of the child (as enumerated in Section 3011).

If no presumption in favor of joint legal and physical custody is created by Section 3040(a), then what does it mean?

Section 3040(a) dictates that the order of preference in granting custody of a child is as follows: first, to the parents of the child; second, if to neither parent, then to someone with whom the child has been living in a stable/wholesome environment; and finally, if to neither parent or someone with whom the child is living, then to any other suitable person who can provide adequate care and guidance to the child. This section can be used to award custody of a child to a step-parent or guardian.

That is to say that California courts will grant custody to a parent before any third party unless it is not in the best interest of the child to do so.

Subsection (a)(1) also creates a mandate on the family court to consider which parent is more likely to facilitate frequent and continuing contact with the other parent.  This provision can create problems for parents who are unable to co-parent and parents who engage in alienating behaviors.

Family Code 3040 provides that:

(a) Custody should be granted in the following order of preference according to the best interest of the child as provided in Sections 3011 and 3020:

(1) To both parents jointly pursuant to Chapter 4 (commencing with Section 3080) or to either parent. In making an order granting custody to either parent, the court shall consider, among other factors, which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent, consistent with Sections 3011 and 3020. The court, in its discretion, may require the parents to submit to the court a plan for the implementation of the custody order.

(2) If to neither parent, to the person or persons in whose home the child has been living in a wholesome and stable environment.

(3) To any other person or persons deemed by the court to be suitable and able to provide adequate and proper care and guidance for the child.

(b) The immigration status of a parent, legal guardian, or relative shall not disqualify the parent, legal guardian, or relative from receiving custody under subdivision (a).

(c) The court shall not consider the sex, gender identity, gender expression, or sexual orientation of a parent, legal guardian, or relative in determining the best interest of the child under subdivision (a).

(d) This section establishes neither a preference nor a presumption for or against joint legal custody, joint physical custody, or sole custody, but allows the court and the family the widest discretion to choose a parenting plan that is in the best interest of the child, consistent with this section.

(e) In cases where a child has more than two parents, the court shall allocate custody and visitation among the parents based on the best interest of the child, including, but not limited to, addressing the child’s need for continuity and stability by preserving established patterns of care and emotional bonds. The court may order that not all parents share legal or physical custody of the child if the court finds that it would not be in the best interest of the child as provided in Sections 3011 and 3020.

Applying the Best Interest of the Child Standard

Parents do not have to fight to win. In fact, if the parents have not already agreed on what they want to happen, the court will make them try mediation to work out a custody agreement and a full parenting plan. Only if all else fails will the couple face a family law judge who will make the decisions.

No matter if the judge must force a plan on a couple or approve a child custody agreement they have already drawn up, state law requires that everyone focus on doing what is in the child’s best interest. cited 

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

Your Just Read this DETAILED VIEW Click Here to Visit our Resource What Exactly is the Child’s Best Interest in Custody Cases!

Click here to learn What Law is Used in Determining Factor in FAM § 3011 – Determining Best Interest Child – Family Code 3011

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

Rule 5.24. Joinder of persons claiming interest

CALIFORNIA RULES OF COURT  Family and Juvenile Rules  Joinder of Parties

2022 California Rules of Court

Rule 5.24. Joinder of persons claiming interest

A person who claims or controls an interest in any matter subject to disposition in the proceeding may be joined as a party to the family law case only as provided in this chapter.

• (a) Applicable rules
  • (1)  All provisions of law relating to joinder of parties in civil actions generally apply to the joinder of a person as a party to a family law case, except as otherwise provided in this chapter.
  • (2)  The law applicable to civil actions generally governs all pleadings, motions, and other matters pertaining to that portion of the proceeding as to which a claimant has been joined as a party to the proceeding in the same manner as if a separate action or proceeding not subject to these rules had been filed, except as otherwise provided in this chapter or by the court in which the proceeding is pending.
• (b) “Claimant” defined
  For purposes of this rule, a “claimant” is an individual or an entity joined or sought or seeking to be joined as a party to the family law proceeding.
• (c) Persons who may seek joinder
  • (1)  The petitioner or the respondent may apply to the court for an order joining a person as a party to the case who has or claims custody or physical control of any of the minor children subject to the action, or visitation rights with respect to such children, or who has in his or her possession or control or claims to own any property subject to the jurisdiction of the court in the proceeding.
  • (2)  A person who has or claims custody or physical control of any of the minor children subject to the action, or visitation rights with respect to such children, may apply to the court for an order joining himself or herself as a party to the proceeding.
  • (3)  A person served with an order temporarily restraining the use of property that is in his or her possession or control or that he or she claims to own, or affecting the custody of minor children subject to the action, or visitation rights with respect to such children, may apply to the court for an order joining himself or herself as a party to the proceeding.
• (d) Form of joinder application
  • (1)  All applications for joinder other than for an employee pension benefit plan must be made by serving and filing form a Notice of Motion and Declaration for Joinder (form FL-371). The hearing date must be less than 30 days from the date of filing the notice. The completed form must state with particularity the claimant’s interest in the proceeding and the relief sought by the applicant, and it must be accompanied by an appropriate pleading setting forth the claim as if it were asserted in a separate action or proceeding.
  • (2)  A blank copy of Responsive Declaration to Motion for Joinder and Consent Order for Joinder (form FL-373) must be served with the Notice of Motion and accompanying pleading.
• (e) Court order on joinder
• (1)  Mandatory joinder
  • (A)  The court must order that a person be joined as a party to the proceeding if the court discovers that person has physical custody or claims custody or visitation rights with respect to any minor child of the marriage, domestic partnership, or to any minor child of the relationship.
  • (B)  Before ordering the joinder of a grandparent of a minor child in the proceeding under Family Code section 3104, the court must take the actions described in section 3104(a).
• (2)  Permissive joinder
  The court may order that a person be joined as a party to the proceeding if the court finds that it would be appropriate to determine the particular issue in the proceeding and that the person to be joined as a party is either indispensable for the court to make an order about that issue or is necessary to the enforcement of any judgment rendered on that issue.
  In deciding whether it is appropriate to determine the particular issue in the proceeding, the court must consider its effect upon the proceeding, including:
  • (A)  Whether resolving that issue will unduly delay the disposition of the proceeding;
  • (B)  Whether other parties would need to be joined to make an effective judgment between the parties;
  • (C)  Whether resolving that issue will confuse other issues in the proceeding; and
  • (D)  Whether the joinder of a party to determine the particular issue will complicate, delay, or otherwise interfere with the effective disposition of the proceeding.
• (3)  Procedure upon joinder
  If the court orders that a person be joined as a party to the proceeding under this rule, the court must direct that a summons be issued on Summons (Joinder) (form FL-375) and that the claimant be served with a copy of Notice of Motion and Declaration for Joinder (form FL-371), the pleading attached thereto, the order of joinder, and the summons. The claimant has 30 days after service to file an appropriate response.

(Subd (e) amended effective January 1, 2017.)
Rule 5.24 amended effective January 1, 2017; adopted effective January 1, 2013.
Title 5, Family and Juvenile Rules-Division 1, Family Rules-Chapter 2, Parties and Joinder of Parties-Article 3, Employee Pension Benefit Plan; adopted January 1, 2013.

source

GRANDPARENT CASE LAW 

Do Grandparents Have Visitation Rights? If there is an Established Relationship then Yes

Third “PRESUMED PARENT” Family Code 7612(C) – Requires Established Relationship Required

Cal State Bar PDF to read about Three Parent Law –
The State Bar of California family law news issue4 2017 vol. 39, no. 4.pdf

Distinguishing Request for Custody from Request for Visitation

Troxel v. Granville, 530 U.S. 57 (2000) – Grandparents – 14th Amendment

Child’s Best Interest in Custody Cases

9.32 Particular Rights – Fourteenth Amendment – Interference with Parent / Child Relationship

When is a Joinder in a Family Law Case Appropriate? – Reason for Joinder

Joinder In Family Law Cases – CRC Rule 5.24

GrandParents Rights To Visit
Family Law Packet OC Resource Center
Family Law Packet SB Resource Center

Motion to vacate an adverse judgment

Mandatory Joinder vs Permissive Joinder – Compulsory vs Dismissive Joinder

When is a Joinder in a Family Law Case Appropriate?

Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848

Punsly v. Ho (2001) 87 Cal.App.4th 1099

Zauseta v. Zauseta (2002) 102 Cal.App.4th 1242

S.F. Human Servs. Agency v. Christine C. (In re Caden C.)

Ian J. v. Peter M

Can I Use Text Messages in My California Divorce?

Two-Steps And Voila: How To Authenticate Text Messages

How Your Texts Can Be Used As Evidence?

California Supreme Court Rules: Text Messages Sent on Private Government Employees Lines Subject to Open Records Requests

case law: City of San Jose v. Superior Court – Releasing Private Text/Phone Records of Government  Employees

Public Records Practices After the San Jose Decision

The Decision Briefing Merits After the San Jose Decision

Here is the Public Records Service Act Portal for all of CALIFORNIA Click Here

]]> https://goodshepherdmedia.net/parents-rights-childrens-bill-of-rights/ Wed, 14 Sep 2022 22:55:30 +0000 https://goodshepherdmedia.net/?p=6433 Parent’s Rights & Children’s Bill of Rights

Scotus Ruling for Parents

Quick Facts on Parental Involvement

• Children who have parental support are likely to have better health as adults.
• Students with involved parents tend to earn higher grades, have better social skills, and are more likely to graduate and go on to post-secondary education.
• Children are more likely to be socially competent and have better communication skills when they have parents who are sensitive to their needs and emotions.
• Teens who are monitored by their parents are one-quarter as likely as teens with “hands-off” parents to smoke, drink, and use drugs.

Parents play an irreplaceable role in the lives of their children. This vital relationship positively impacts a child’s physical, mental, and emotional well-being. The right of parents to maintain a strong involvement in their children’s lives has been continually upheld by Supreme Court doctrine. It is deeply valued by millions of American families. cited

Amdt 5.4.5.6.2 Parental and Children’s Rights – under the Fifth Amendment:

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

In a case involving a state proceeding to terminate the parental rights of an indigent without providing her counsel, the Court recognized the parent’s interest as “an extremely important one.” The Court, however, also noted the state’s strong interest in protecting the welfare of children. Thus, as the interest in correct fact-finding was strong on both sides, the proceeding was relatively simple, no features were present raising a risk of criminal liability, no expert witnesses were present, and no “specially troublesome” substantive or procedural issues had been raised, the litigant did not have a right to appointed counsel.1 In other due process cases involving parental rights, the Court has held that due process requires special state attention to parental rights.2 Thus, it would appear likely that in other parental right cases, a right to appointed counsel could be established.

read another amendment section under the 14th amendment below

Amdt 9.32 Particular Rights – Fourteenth Amendment –  Interference with Parent / Child Relationship

RELATIONSHIP WITH YOUR CHILDREN & YOUR CONSTITUIONAL RIGHT$ + RULING$

YOU CANNOT GET BACK TIME BUT YOU CAN HIT THOSE PUNKS WHERE THEY WILL FEEL YOU = THEIR BANK

We also have the 9.3 Section 1983 Claim Against Defendant as (Individuals) — 14th Amendment  this CODE PROTECTS all US CITIZENS

We also have the  Amdt5.4.5.6.2 – Parental and Children’s Rights 5th Amendment  this CODE PROTECTS all US CITIZENS

We also have the 9.32 – Interference with Parent / Child Relationship – 14th Amendment this CODE PROTECTS all US CITIZENS

We also have the  California Civil Code Section 52.1 Interference with exercise or enjoyment of individual rights

We also have the Parent’s Rights & Children’s Bill of Rights SCOTUS RULINGS FOR YOUR PARENT RIGHTS

We also have the GrandParents Rights To Visit Family Law Packet including the FL-375 Form Needed to File

Children’s Bill of Rights During Splitting Up, Separation or Divorce

The biggest fear parents have during divorce is the impact it will have on their children.  Putting the needs and best interests of your children first during a divorce can look different for every family.

Even during a time of great stress and turmoil, parents have a responsibility and opportunity to truly support their children.  One way is to remember your child’s rights.

1. Your child has a right to love both of their parents.

2. Your child has a right to not to have to choose between their parents.

3. Your child has a right to not to have to listen to either parent talk badly about the other parent or his or her family.

4. Your child has a right to express feelings and have those feelings acknowledged by their parents.

5. Your child has a right to have contact with both parents at appropriate times, regardless of the parenting schedule.

6. Your child has the right to have their things at both parents’ homes and have it acknowledged that they child have two homes, regardless of how much time they spend at each.

We know you want to be the best parent you can be during your divorce.  Keeping the above rights of your child in mind during the divorce process can help your actions be aligned with your intentions when the going gets tough.

If your child is of appropriate age (generally ages 8 and up), we encourage you to discuss these rights with your child to create an environment in your home that fosters open and honest communication and to support your child through this transition. cited https://koenigdunne.com/childrens-bill-of-rights-during-divorce/

“…It is a Fundamental Constitutional Right.”

In 2000, the Supreme Court cited a long train of previous cases which showed that the right of parents to direct the education and upbringing of their children is a fundamental right. The following passage, taken from Troxel v. Granville, highlights the rich history of this fundamental right:

In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'” (citation omitted)); Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”); Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”); Parham v. J. R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) ( “Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”); Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”); Glucksberg, supra, at 720, 117 S.Ct. 2258 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the right … to direct the education and upbringing of one’s children” (citing Meyer and Pierce)). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. (emphasis added)

Learn More: Family Law Appeal

Parents Have an Irreplaceable Role

The role of parents in a child’s life is an irreplaceable one. “Even when young children spend most of their waking hours in child care, parents remain the most influential adults in their lives,” writes Dr. Jack Shonkoff, a board-certified pediatrician who sits on the faculty of the Harvard Graduate School of Education.[2]

“The hallmark of [the parental] relationship is the readily observable fact that this special adult is not interchangeable with others,” he continues. “A child may not care who cuts his hair or takes his money at the toy store, but he cares a great deal about who is holding her when she is unsure, comforts her when she is hurt, and shares special moments in her life.”[3]

The relationship that parents share with their children is one that impacts a child throughout his or her lifetime. Studies show that the benefits of parental involvement are manifold, affecting numerous areas of a child’s life, including health and development, academic progress, and life choices.

The Supreme Court has maintained that parents possess a fundamental constitutional right to raise their children as they see fit. “The child is not the mere creature of the State,” the Supreme Court concluded in a 1925 ruling. “Those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

“The child is not the mere creature of the State. Those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

– Pierce v. Society of Sisters, 268 U.S. 510
(1925 Supreme Court case)

The role of parents in the lives of their children has, historically, been one of unquestioned value, celebrated in cultures around the world. And the rights that come along with that responsibility—to direct the upbringing and education of one’s own children—have been consistently honored and upheld.

There is only one way to effectively secure the foundation of parenthood for this generation and the next: a constitutional amendment that explicitly protects the child-parent relationship from unreasonable government intrusion. A constitutional amendment will ensure that the rights of parents to raise their children are honored by federal court judges.

cited 

In early 2006, the U.S. Supreme Court used this very language when talking about violations of religious liberty. According to the Court, the government must “demonstrate that the compelling interest test is satisfied through application of the challenged law ‘to the person’–the particular claimant whose sincere exercise of religion is being substantially burdened.”Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418, 430-431 (2006). The text of this proposed parental rights amendment merely takes this well-established principle of law, and applies it explicitly to the fundamental right of parents.

Protecting Parental Rights at the State Level

Parents have rights to be parents’

[1] While in Jackson v. Tangreen (2000), the Court of Appeals of Arizona found that “Troxel cannot stand for the proposition that [a state visitation statute] is necessarily subject to strict scrutiny,” the newer Ariz. Rev. Stat. § 1-601 explicitly requires this strict scrutiny review.

[3] Col. Rev. Stat. § 13-22-107(1)(a)(III) expressly declares parental rights “fundamental,” which may lead to strict scrutiny protection the next time the issue comes up in the courts.

[4] In Wilson v. Div. of Family Servs., the Supreme Court of Delaware recognized “the interest of natural parents in the care and custody of their children” as a “fundamental right,” but did not specify strict scrutiny.

[5] O.C.G.A. § 19-7-1 (b. [***8] 1) establishes a rebuttable presumption that parental custody is always in the child’s best interest.

[6] While in Skov v. Wicker v. Boydston, 272 Kan 240 (2001), the Kansas Supreme Court, citing the Troxel ruling, only demanded the ambiguous Troxel test, it is expected that the religious freedom statute of 2013 that calls for fundamental parental rights and outlines strict scrutiny protection will lead to a different outcome in Kansas courts the next time the issue comes up.

[7] Louisiana Children’s Code Article 101 supports parental rights and family privacy.

[8] Parental rights are affirmed as fundamental rights deserving of strict scrutiny in Nebraska Supreme Court case precedent, but contrary court precedent also exists. The state of parental rights in Nebraska’s courts, therefore, is unclear.

[7] Louisiana Children’s Code Article 101 supports parental rights and family privacy.

[8] Parental rights are affirmed as fundamental rights deserving of strict scrutiny in Nebraska Supreme Court case precedent, but contrary court precedent also exists. The state of parental rights in Nebraska’s courts, therefore, is unclear.

[9] While North Carolina and Rhode Island courts have repeatedly recognized the rights of parents to oversee the care of their children as a fundamental right, unfortunately, no specific standard of review (such as “strict scrutiny”) is set in these cases in either state.

[10] Tennessee does have numerous laws on the books that provide support to parental rights.

[11] Although Texas does not have a specific parental rights statute, parental rights are respected and protected by statute in several key parts of Texas law. A parental rights statute could improve on this–but not by much.

[12] Vermont courts have a history of recognizing fundamental parental rights but the standard of review may be a subject of confusion.

[13] Washington courts affirm parental rights as fundamental, although there is no mention of strict scrutiny.

[14] West Virginia law acknowledges parental rights as fundamental in W. Va. Code § 49-1-1(a) and W. Va. Code § 49-6D-2(a).

[15] In 2003, the New Jersey Supreme Court heard just such a challenge to the grandparent visitation statute. Our Supreme Court, in essence, found the Grandparent Visitation Statute as drafted to be unconstitutional and therefore added a requirement: a threshold showing of harm that can be satisfied only by “gross misconduct, unfitness, abandonment, or exceptional circumstances.” [Moriarty v. Bradt, 177 N.J. 84, 112-18 (2003).] Following such a finding, the parent is obliged to offer a visitation schedule, and if the grandparents agree to that schedule, “that will be the end of the inquiry.” If the parent and grandparents are unable to agree on a visitation schedule, the Court will implement a schedule “that it finds is in the child’s best interest, based on the application of the statutory factors.” [Moriarty v. Bradt, 177 N.J. 84, 117 (2003).]

Cited https://parentalrights.org/states/

 3 Constitutional Rights of Parents Develop 1920’s : parents have a fundamental liberty interest in the “care, custody and control” of their children (though not to due process before removal).  Meyer v. Nebraska, 262 U.S. 390 (1923) (teaching foreign language in school)  Pierce v. Society of Sisters, 268 U.S. 510 (1925) (private schools) “It is cardinal with us that the custody, care and nurture of the child reside first in the parents.”  Prince v. Massachusetts, 321 U.S. 158 (1944) (right to practice religion)

4 4 In Re Gault, 387 U.S. 1 (1967) “Due process, not benevolent intentions, produces justice.” – Justice Abe Fortas   Struck down parens patriae authority of the court to remove children from home without a hearing (to deal with criminal conduct).   Did not disturb the parens patriae doctrine in dependency cases.   Hailed by some as advancement in children’s rights.   Criticized by others as the criminalization of the juvenile court and the beginning of the end of the court’s authority to treat children like children rather than adults.   “Child’s best interest” today can retain some of the old paternalism, if we are not careful.

5 5 Constitutional Rights of Parents 1972: Unwed father could not be presumed to be an unfit parent; Entitled to a hearing, under equal protection clause) – Stanley v. Illinois, 405 U.S. 645 1982: The interest of parents in the care and custody of their children is a fundamental liberty interest protected by the due process clause of the 14 th amendment. – Santosky v. Kramer, 455 U.S. 745 (because of due process protection, standard of proof for TPR must be clear and convincing). * Extended to adjudications by NM statute 32A-4-20(H). * 83 years from the first children’s courts, 15 years after Gault, came the establishment of due process for TPRs in Santosky.

6 6 Despite the Supreme Court’s repeated recognition of these significant fundamental parental liberty interests, these interests have never been seen to be without limits. -Lehr v. Robertson, 463 US 248 (1983). -Gerald D., 491 U.S. 110 (1989). 1980’s

7 7 The Right to Parent Requires a Familial Relationship – Biology is not enough Lehr v. Robertson: The mere existence of a biological link does not merit… constitutional protection. To have constitutionally protected parental rights, an unwed father must take steps to establish a “significant custodial, personal, or financial relationship with his child.”

cited https://slideplayer.com/slide/5813806/

UNFAIR TO ONE SIDE

Norton v. Shelby County, 118 U.S. 425, (1886) “An unconstitutional act is not law; it confers no rights;
it imposes no duties; affords no protection; it creates no office; it is in legal contemplation, as inoperative as though it had never been passed.”

Murdock v. Penn., 319 US 105, (1943) “No state shall convert a liberty into a privilege, license it, and
attach a fee to it.”
Shuttlesworth v. Birmingham, 373 US 262, (1969) “If the state converts a liberty into a privilege, the citizen can engage in the right with impunity.”

Cooper v. Aaron, 358 U.S. 1, 78 S.Ct. 1401 (1958). “No state legislator or executive or judicial officer can
war against the Constitution without violating his undertaking to support it.” The constitutional theory
is that we the people are the sovereigns, the state and federal officials only our agents.”

NO IMMUNITY
“Sovereign immunity does not apply where (as here) government is a lawbreaker or jurisdiction is the issue.” Arthur v. Fry, 300 F.Supp. 622 “Knowing failure to disclose material information necessary to prevent statement from being misleading, or making representation despite knowledge that it has no reasonable basis in fact, are actionable as fraud under law.” Rubinstein v. Collins, 20 F.3d 160, 1990

[a] “Party in interest may become liable for fraud by mere silent acquiescence and partaking of benefits of fraud.”Bransom v. Standard Hardware, Inc., 874 S.W.2d 919,1994

Ex dolo malo non oritur actio. Out of fraud no action arises; fraud never gives a right of action. No court will lend its aid to a man who founds his cause of action upon an immoral or illegal act. As found in Black’s Law Dictionary, Fifth Edition, page 509.  “Fraud destroys the validity of everything into which
it enters,” Nudd v. Burrows, 91 U.S 426. “Fraud vitiates everything” Boyce v. Grundy, 3 Pet. 210
“Fraud vitiates the most solemn contracts, documents and even judgments.” U.S. v. Throckmorton, 98 US 61

When a Citizen challenges the acts of a federal or state official as being illegal, that official cannot just simply avoid liability based upon the fact that he is a public official. In United States v. Lee, 106 U.S. 196, 220, 221, 1 S.Ct. 240, 261, the United States claimed title to Arlington, Lee’s estate, via a tax sale some years earlier, held to be void by the Court. In so voiding the title of the United States, the Court declared:

“No man in this country is so high that he is above the law. No officer of the law may set that law at  defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law and are bound to obey it. It is the only supreme power in our system of government, and every man who by accepting office participates in its functions is only the more strongly bound to submit to that supremacy, and to observe the limitations which it imposes upon the exercise of the authority which it gives. “Shall it be said… that the courts cannot give remedy when the citizen has been deprived of his property by force, his estate seized and converted to the use of the government without any lawful authority, without any process of law, and without any compensation, because the president has ordered it and his officers are in possession? If such be the law of this country, it sanctions a tyranny which has no existence in the monarchies of Europe, nor in any other government which has a just claim to well-regulated liberty and the protection of personal rights.”

See Pierce v. United States (“The Floyd Acceptances”), 7 Wall. (74 U.S.) 666, 677 (“We have no officers in this government from the President down to the most subordinate agent, who does not hold office under the law, with prescribed duties and limited authority”); Cunningham v. Macon, 109 U.S. 446, 452, 456, 3 S.Ct. 292, 297 (“In these cases he is not sued as, or because he is, the officer of the government, but as an individual, and the court is not ousted of jurisdiction because he asserts authority as such officer. To make out his defense he must show that his authority was sufficient in law to protect him… It is no answer for the defendant to say I am an officer of the government and acted under its authority unless he shows the sufficiency of that authority”); and Poindexter v. Greenhow, 114 U.S. 270, 287, 5 S.Ct. 903, 912 WHEREAS, officials and even judges have no immunity (See, Owen vs. City of Independence, 100 S Ct. 1398; Maine vs. Thiboutot, 100 S. Ct. 2502; and Hafer vs. Melo, 502 U.S. 21; officials and judges are deemed to know the law and sworn to uphold the law; officials and judges cannot claim to act in good faith in willful deprivation of law, they certainly cannot plead ignorance of the law, even the Citizen cannot plead ignorance of the law, the courts have ruled there is no such thing as ignorance of the law, it is ludicrous for learned officials and judges to plead ignorance of the law therefore there is no immunity, judicial or otherwise, in matters of rights secured by the Constitution for the United States of America. See: Title 42 U.S.C. Sec. 1983.

“When lawsuits are brought against federal officials, they must be brought against them in their “individual” capacity not their official capacity. When federal officials perpetrate constitutional torts, they do so ultra vires (beyond the powers) and lose the shield of immunity.” Williamson v. U.S. Department of Agriculture, 815 F.2d. 369, ACLU Foundation v. Barr, 952 F.2d. 457, 293 U.S. App. DC 101, (CA DC 1991). “Personal involvement in deprivation of constitutional rights is prerequisite to award of damages, but defendant may be personally involved in constitutional deprivation by direct participation, failure to remedy wrongs after learning about it, creation of a policy or custom under which unconstitutional practices occur or gross negligence in managing subordinates who cause violation.” (Gallegos v. Haggerty, N.D. of New York, 689 F. Supp. 93 (1988).

“The law requires proof of jurisdiction to appear on the record of the administrative agency and all
administrative proceedings.” Hagans v. Lavine, 415 U. S. 533

THEREFOR GIVE THE RIGHTS TO PARENT TO GOOD PARENTS EQUALLY

(In re Caden C. (2021) 11 Cal. 5th 614, 644 (“Caden C.”).) In reversal, the California Supreme Court holds that the parental-benefit exception per Welf. & Inst.C. §366.26(c)(1)(B)(i) does not require heightened or additional showing in order to establish the exception; neither must a parent show that they are substantially complying with the case plan in order to establish the exception.

( In re B.G. (1974) 11 Cal.3d 679, 688–689, 114 Cal.Rptr. 444, 523 P.2d 244 ; see In re Marilyn H. (1993) 5 Cal.4th 295, 306, 19 Cal.Rptr.2d 544, 851 P.2d 826.) “[A] parent whose child may be found subject to the dependency jurisdiction of the court enjoys a due process right to be informed of the nature of the hearing, as well as the allegations upon which the deprivation of custody is predicated, in order that he or she may make an informed decision whether to appear and contest the allegations.”

The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. – Pierce v. Society of Sisters, 268 U.S. 510 (1925)

In subsequent cases also, we have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children. See, e.g.,

Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972) (“It is plain that the interest of a parent in the companionship, care, custody, and management of his or her children ‘come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements'” (citation omitted));

Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972) (“The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition”);

Quilloin v. Walcott, 434 U.S. 246, 255, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected”);

Parham v. J. R., 442 U.S. 584, 602, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979) ( “Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course”);

Santosky v. Kramer, 455 U.S. 745, 753, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982) (discussing “[t]he fundamental liberty interest of natural parents in the care, custody, and management of their child”);

Glucksberg, supra, at 720, 117 S.Ct. 2258 (“In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the ‘liberty’ specially protected by the Due Process Clause includes the right … to direct the education and upbringing of one’s children” (citing Meyer and Pierce)). In light of this extensive precedent, it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. (emphasis added)

It is the natural duty of the parent to give his children education suitable to their station in life. – Meyer v. State of Nebraska, 262 U.S. 390 (1923)

The values of parental direction of the religious upbringing and education of their children in their early and formative years have a high place in our society.

Even more markedly than in Prince, therefore, this case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children.

The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition. – Wisconsin v. Yoder, 406 U.S. 205 (1972)

This Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. – Cleveland Board of Education v. LaFleur, 414 U.S. 632 (1974)

The liberty interest in family privacy has its source, and its contours are ordinarily to be sought, not in state law, but in intrinsic human rights, as they have been understood in “this Nation’s history and tradition.” – Smith v. Organization of Foster Families, 431 U.S. 816 (1977)

We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected.

We have little doubt that the Due Process Clause would be offended “if a State were to attempt to force the breakup of a natural family, over the objections of the parents and their children, without some showing of unfitness and for the sole reason that to do so was thought to be in the children’s best interest.” – Quilloin v. Walcott, 434 U.S. 246 (1978)

Our decisions establish that the Constitution protects the sanctity of the family precisely because the institution of the family is deeply rooted in this Nation’s history and tradition. It is through the family that we inculcate and pass down many of our most cherished values, moral and cultural. – Moore v. East Cleveland, 431 U.S. 494 (1977)

It is cardinal with us that the 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. . . . It is in recognition of this that these decisions have respected the private realm of family life which the state cannot enter. – Prince v. Commonwealth of Massachusetts, 321 U.S. 158 (1944)

The law’s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life’s difficult decisions. More important, historically it has recognized that natural bonds of affection lead parents to act in the best interests of their children.

The statist notion that governmental power should supersede parental authority in all cases because some parents abuse and neglect children is repugnant to American tradition.

Simply because the decision of a parent is not agreeable to a child or because it involves risks does not automatically transfer the power to make that decision from the parents to some agency or officer of the state. – Parham v. J. R., 442 U.S. 584 (1979)

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.

Until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. – Santosky v. Kramer, 455 U.S. 745 (1982)

The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents or have lost temporary custody of their child to the State. Even when blood relationships are strained, parents retain a vital interest in preventing the irretrievable destruction of their family life.

Until the State proves parental unfitness, the child and his parents share a vital interest in preventing erroneous termination of their natural relationship. – Santosky v. Kramer, 455 U.S. 745 (1982)

“The best interests of the child,” a venerable phrase familiar from divorce proceedings, is a proper and feasible criterion for making the decision as to which of two parents will be accorded custody. But it is not traditionally the sole criterion-much less the sole constitutional criterion-for other, less narrowly channeled judgments involving children, where their interests conflict in varying degrees with the interests of others.

“The best interests of the child” is not the legal standard that governs parents’ or guardians’ exercise of their custody: So long as certain minimum requirements of child care are met, the interests of the child may be subordinated to the interests of other children, or indeed even to the interests of the parents or guardians themselves. – Reno v. Flores, 507 U.S. 292 (1993)

In a long line of cases, we have held that, in addition to the specific freedoms protected by the Bill of Rights, the “liberty” specially protected by the Due Process Clause includes the rights . . . to direct the education and upbringing of one’s children.

The Fourteenth Amendment “forbids the government to infringe … ‘fundamental’ liberty interests of all, no matter what process is provided, unless the infringement is narrowly tailored to serve a compelling state interest.” – Washington v. Glucksburg, 521 U.S. 702 (1997)

Child Dependency Due Process –

Conforming to Proof In re I.S.

Published 8/16/2021; First Dist., Div. Two Docket No.: A161417; 67 Cal.App.5th 918

IT WAS AN ABUSE OF DISCRETION AND VIOLATION OF A PARENT’S DUE PROCESS RIGHTS FOR THE COURT TO AMEND THE ALLEGATIONS TO CONFORM TO PROOF IN SUCH A WAY THAT IT 6 MATERIALLY ALTERED THE ALLEGATIONS BY INCLUDING FACTS AND LEGAL THEORIES NOT INCLUDED IN THE ORIGINAL PETITION.

Reversed. Mother’s due process was violated when the court amended the petitions to conform to proof by including facts and legal theories that were not in the original petition. A court may amend a petition to conform to the proof presented at a jurisdictional hearing if the amendment is immaterial, but amendments that are material or prejudicial are not allowed. An example of an allowable amendment is the substituting of one word for another where the variance between the words was minimal. (See In re Jessica C. (2001) 93 Cal.App.4th 1027 [holding the word “touching” could be substituted for “penetrating” in a sexual abuse case because the basic allegation remained the same].)

IN RE I.S.,

“Since the interest of a parent in the companionship, care, custody, and management of his [or her] children is a compelling one, ranked among  the most  basic of civil rights [citations], the state, before depriving a parent of this interest, must afford [the parent] adequate notice and an opportunity to be heard.” ( In re B.G. (1974) 11 Cal.3d 679, 688–689, 114 Cal.Rptr. 444, 523 P.2d 244 ; see In re Marilyn H. (1993) 5 Cal.4th 295, 306, 19 Cal.Rptr.2d 544, 851 P.2d 826.) “[A] parent whose child may be found subject to the dependency jurisdiction of the court enjoys a due process right to be informed of the nature of the hearing, as well as the allegations upon which the deprivation of custody is predicated, in order that he or she may make an informed decision whether to appear and contest the allegations.”

( In re Wilford J. (2005) 131 Cal.App.4th 742, 751, 32 Cal.Rptr.3d 317.) “Notice of the specific facts upon which the petition is based is necessary to enable the parties to properly meet the charges.” ( In re Jeremy C. (1980) 109 Cal.App.3d 384, 397, 167 Cal.Rptr. 283.)

A court may amend a dependency petition to conform to the evidence received at the jurisdiction hearing to remedy immaterial variances between the petition and proof. ( § 348 ; Code Civ. Proc., § 470.) However, material amendments that mislead a party to his or her prejudice are not allowed. ( Code Civ. Proc., §§ 469 – 470 ; In re Andrew L. (2011) 192 Cal.App.4th 683, 689, 121 Cal.Rptr.3d 664 ( Andrew L. ).)

The basic rule from civil law, however, is that amendments to conform to proof are favored, and should not be denied unless the pleading as drafted prior to the proposed amendment would have misled the adversarial party to its prejudice.” ( In re Jessica C. (2001) 93 Cal.App.4th 1027, 1041–1042, 113 Cal.Rptr.2d 597 ( Jessica C. ).)

https://goodshepherdmedia.net/child-dependency-due-process-conforming-to-proof-in-re-i-s/

CONFRONTATION CLAUSE / DUE PROCESS
https://goodshepherdmedia.net/confrontation-clause/

The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” This bedrock procedural guarantee applies to both federal and state prosecutions. Pointer v. Texas, 380 U. S. 400, 406 (1965). In Ohio v. Roberts, 448 U. S. 56 (1980), the Supreme Court held that the Confrontation Clause does not bar admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate ‘indicia of reliability.’” Id., at 66. To meet that test, evidence had to either fall within a “firmly rooted hearsay exception” or bear “particularized guarantees of trustworthiness.” Ibid. The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him.” This bedrock procedural guarantee applies to both federal and state prosecutions. .

In , the Supreme Court held that the Confrontation Clause does not bar admission of an unavailable witness’s statement against a criminal defendant if the statement bears “adequate ‘indicia of reliability.’” ., at 66. To meet that test, evidence had to either fall within a “firmly rooted hearsay exception” or bear “particularized guarantees of trustworthiness.” Ibid.

People v. Superior Court (Jones ) (1998) 18 Cal.4th 667, 680-681, 76 Cal.Rptr.2d 641, 958 P.2d 393.) “Findings of fact are reviewed under a ‘substantial evidence’ standard.” ( Ibid. )

Under this standard, ” ‘a trial court’s ruling will not be disturbed, and reversal of the judgment [or order] is not required, unless the trial court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice.’ ” ( People v. Hovarter (2008) 44 Cal.4th 983, 1004, 81 Cal.Rptr.3d 299, 189 P.3d 300 ; see People v. Kipp (1998) 18 Cal.4th 349, 371, 75 Cal.Rptr.2d 716, 956 P.2d 1169 [“[a] court abuses its discretion when its ruling ‘falls outside the bounds of reason’

substantive issues to the court’s findings, and the court abused  its discretion (see In re M.R. (2017) 7 Cal.App.5th 886, 902; Bridget A. v. Superior Court (2007) 148 Cal.App.4th 285, 300) in terminating jurisdiction and issuing the custody orders.

Gravamen of proof  (In re I.S., supra, 67 Cal.App.5th at p. 928) as the proof offered at the jurisdiction hearing.

“‘Substantial evidence is evidence that is “reasonable, credible, and of solid value”; such that a reasonable trier of fact could make such findings.'” (In re L.W., supra, 32 Cal.App.5th at p. 848.) “‘But substantial evidence “is not synonymous with any evidence. [Citations.] A decision supported by a mere scintilla of evidence need not be affirmed on appeal.”‘” (In re Joaquin C. (2017) 15 Cal.App.5th 537, 560.) “‘”Inferences may constitute substantial evidence, but they must be the product of logic and reason. Speculation or conjecture alone is not substantial evidence.'”” (Patricia W. v. Superior Court (2016) 244 Cal.App.4th 397, 420; see In re Ma.V., supra, 64 Cal.App.5th *19 at p. 22 [“Substantial evidence indicates more than a smidgeon or trace; it must be meaningful and significant and cannot be merely speculative.”]; In re Donovan L. (2016) 244 Cal.App.4th 1075, 1093 [a “juvenile court’s conclusion ‘supported by little more than speculation’ [is] not based on substantial evidence”].) The appellant has the burden to show there is no evidence of a sufficiently substantial nature to support the findings or order. (In re R.V. (2012) 208 Cal.App.4th 837, 843.)

where, as here, the parent appeals from the order terminating jurisdiction and the custody order, an appeal from jurisdiction findings is not moot where the sustained findings have an adverse effect on a parent’s custody or visitation rights. (See Rashad D., supra, 63 Cal.App.5th at p. 159 [“the parent must appeal not only from the jurisdiction finding . . . order but also from the orders terminating jurisdiction and modifying the parent’s prior custody status”].)

Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children. – Troxel v. Granville, 530 U.S. 57, at 65-6 (2000) state court judge does NOT HAVE the discretion to determine the best interests of the child in these situations THIS violates due process, especially when there is no allegation that the parent is unfit. It is reasonable to presume that parents will act in the best interests of their children, so the state should not interfere and take that role away from them.

The Fourteenth Amendment’s Due Process Clause has a substantive component that “provides heightened protection against government interference with certain fundamental rights and liberty interests,” Washington v. Glucksberg, 521 U. S. 702, 720, including parents’ fundamental right to make decisions concerning the care, custody, and control of their children, see, e. g., Stanley v. Illinois, 405 U. S. 645, 651. Pp.63-66.

There is a presumption that fit parents act in their children’s best interests, Parham v. J. R., 442 U. S. 584, 602; there is normally no reason for the State to inject itself into the private realm of the family to further question fit parents’ ability to make the best decisions regarding their child, my son, see, e. g., Reno v. Flores, 507 U. S. 292, 304.

Family Court Sanctions Ruling Results in Father’s Rights to Visit being Strengthened

Featherstone v. Martinez –  “[i]n a vacuum, [Mother’s] declaration contained lies, was misleading, entitled, controlling, manipulative, constitutionally abusive, and dismissive of any rights to meaningfully participate in co-parenting from the initial requests and arguments of the initial filing till now [Father].”  The court deemed the request “that the court prevent overnights for two years, while limiting [Father] to an approximately one-quarter or one-half of one percent timeshare for those two years” “in and of itself, sanctionable”

Featherstone v. Martinez – “[T]he way you wrote it, it was along the lines of, I control everything, I’m the boss, and, you know, I’ll do him a favor and let him see his child.  That is not how it works. You are co-equal parents. Moms get the advantage because technically, literally, when a child is born, they are there, obviously. But then when it comes to court, they think, well, I’m the mom. I always win.” Mother agreed Father had always been involved in Minor’s life and the court then remarked, “So it’s not a lack of familiarity. You should literally be at 50/50. Not, I let him see her whenever he wants.  But he has a weird travel schedule.”

When Mother informed the court that, during mediation, she offered Father six hours of visitation “or whenever he’s home[,]” the court asked Mother if she would like it if the roles were reversed and said: “I know how hard it is.  You gave birth to the child.  You held the child.  You’ve taken care of this child.  It’s hard to conceptualize that he is every bit of the parent that you are, especially in this case because he’s been there from birth.”  The court then said, “So here’s the law:  If everything is equal, you’re supposed to be sharing 50/50.  Not six hours.  50/50.”

The court then made its ruling as follows: “I’m going to side completely with respondent today, and I think in the future you’re going to have a really hard time, because although I’ve tried to explain it, emotionally—and I understand—you do not feel like he’s an equal parent and you feel like you need to drag this out and make it slow.”