BILL ANALYSIS Ó
SENATE JUDICIARY COMMITTEE
Senator Hannah-Beth Jackson, Chair
2013-2014 Regular Session
AB 1628 (Fox)
As Introduced
Hearing Date: June 10, 2014
Fiscal: No
Urgency: No
NR
SUBJECT
Visitation Rights: Grandparent Rights
DESCRIPTION
This bill would allow the court to grant reasonable visitation
to a grandparent when: (1) there is a preexisting relationship
between the grandchild and grandparent; (2) the interests of the
child in having visitation with the grandparent are balanced
against right of the parent to exercise parental authority; and
(3) one of the parents is incarcerated or institutionalized.
BACKGROUND
It has long been recognized 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." (Troxel v. Granville (2000) 530 U.S. 57, 66.)
In order to accommodate grandparents who wish to petition for
visitation rights to their grandchildren, the Legislature
enacted SB 306 (Lockyer, Ch. 832, Stats. 1993). That bill sought
to balance a grandparent's ability to petition for visitation
rights against the parent's right to make decisions about the
care, custody, and control of their children. The statute was
subsequently upheld by the California Supreme Court as not
violating the parent's fundamental right over the custody,
care, and control over their children. (In re Marriage of Harris
(2004) 34 Cal.4th 210, 230.)
Currently, when a child's parents are married, grandparents are
restricted in their ability to petition for visitation unless
one of several circumstances exists. AB 1628 would additionally
(more)
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authorize a grandparent to petition for visitation when "one of
the parents is incarcerated or involuntarily institutionalized."
CHANGES TO EXISTING LAW
Existing law allows a court to grant reasonable visitation to a
grandparent if the court determines that visitation is in the
best interests of the child. (Fam. Code Sec. 3103.)
Existing law requires a court, prior to granting visitation, to
find a preexisting relationship with the grandparent such that
visitation is in the best interests of the child, and balance
the interest of the child in having visitation against the
parent's rights. (Fam. Code Sec. 3104(a).)
Existing law prevents courts from granting grandparents
visitation while the natural or adoptive parents are married,
unless:
the parents are currently living separately and apart on a
permanent or indefinite basis;
one or more of the parents has been absent for more than one
month without the other spouse knowing the whereabouts of the
absent spouse;
one of the parents joins in the petition with the
grandparents; or
the child is not residing with either parent. (Fam. Code Sec.
3104(b).)
This bill would add to the list of circumstances immediately
above, and authorize the court to grant visitation to a
grandparent if one of the parents is incarcerated or
involuntarily institutionalized.
COMMENT
1.Stated need for the bill
According to the author:
Grandparents play an important role in the lives of children
with incarcerated parents. Often times for incarcerated
mothers, grandparents provide primary care to children.
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However, under current law a grandparent is prohibited from
filing a petition for visitation while the parents are
married, unless one of several circumstances are present.
None of the circumstances listed addresses the situation of
when a parent is incarcerated. AB 1628 would add the
condition of one parent being incarcerated as one of these
circumstances. AB 1628 supports the care, stability and
development of children under unfortunate circumstances.
2.Narrowly tailored to promote stability for children when one
parent has been incarcerated
In general, grandparents may not file for visitation rights
while the parents of a grandchild are married. There are a
number of exceptions that cover situations when the child is not
residing with either parent. This bill would create an
additional exception, thus allowing a grandparent to petition
the court for visitation when a parent has been incarcerated or
involuntarily institutionalized. The National Parents
Organization of California (NPOC), in opposition argues that
this bill is an inappropriate use of the law which could give
grandparents the right to harass their daughter-in-law or
son-in-law. NPOC writes "where we find this to be most
unnerving is when the right could be exercised in retaliation
for reporting incidents of domestic abuse. Just the threat of
filing for grandparent custody could be used to deter reports of
domestic violence."
Staff notes that this bill affects only a grandparent's ability
to petition the court for visitation, not custody, and is
limited to situations where 1) a parent has been incarcerated or
institutionalized, 2) there is a pre-existing relationship
between the grandparent and grandchild, and 3) the court
balances the interest of the child in having visitation with the
grandparent against the right of the parents to exercise their
parental authority. In support, Legal Services for Prisoners
with Children writes:
Our office is contacted on a regular basis by grandparents who
would like to maintain contact with their grandchildren when
the parent of the grandchild is incarcerated. Sometimes, these
grandparents have been the primary caregivers of their
grandchildren. We believe that children benefit by having
many loving adults in their lives. Incarceration disrupts
family ties, not only between parent and child, but also
between child and grandparents. This is an important bill
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which will help preserve family ties and provide consistency
for children of incarcerated parents.
Further, in support, the California Catholic Conference, Inc.
writes that "maintaining community and family connections can
many times help children stay out of the foster system."
3. Proposed language constitutionally sound
Previous challenges to Family Code Section 3104 were based on
the fundamental right of a parent to the care, custody, and
control of their children. (See Troxel v. Granville (2000) 530
U.S. 57, 66; In re Marriage of Harris (2004) 34 Cal.4th 210,
230.) This section previously withstood constitutional
scrutiny due to its required balancing of interests, and
rebuttable presumption against grandparent visitation under
certain circumstances where the natural or adoptive parent
objects. (In re Marriage of Harris (2004), 34 Cal.4th at
226-30.)
AB 2517 would not modify the required court findings, balancing
of interests, or the rebuttable presumption. Thus, although
this will allow grandparent visitation in certain circumstances
not currently allowed, this visitation does not violate a
parent's fundamental rights regarding his or her children.
Support : All Saints Church Foster Care Project; American
Federation of State, County and Municipal Employees (AFSCME),
AFL-CIO; Association of Family Conciliation Courts; California
Catholic Conference of Bishops; California Commission on Aging;
Family Law Section of the State Bar; Legal Services for
Prisoners with Children
Opposition : National Parents Organization of California
HISTORY
Source : Author
Related Pending Legislation : None Known
Prior Legislation :
AB 2517 (Tran, Chapter 138, Statutes of 2006) allowed a
grandparent to petition the court for visitation with a
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grandchild when the natural or adoptive parents are married, and
the grandchild had been adopted by a stepparent.
AB 2292 (Wolk, Chapter 301, Statutes of 2004) provided courts
with the discretion to protect the best interests of children in
granting reasonable visitation with former long-term guardians.
Prior Vote :
Assembly Floor (Ayes 70, Noes 0)
Assembly Judiciary Committee (Ayes 10, Noes 0)
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