BILL ANALYSIS
AB 2517
Page 1
Date of Hearing: May 9, 2006
ASSEMBLY COMMITTEE ON JUDICIARY
Dave Jones, Chair
AB 2517 (Tran) - As Introduced: February 23, 2006
PROPOSED CONSENT
SUBJECT : CHILDREN: GRANDPARENTS' VISITATION RIGHTS
KEY ISSUE : SHOULD FAMILY COURTS BE PERMITTED TO ALLOW A
GRANDPARENT A REASONABLE OPPORTUNITY TO VISIT WITH HIS OR HER
GRANDCHILD IN THE LIMITED CIRCUMSTANCE WHEN A STEPPARENT ADOPTS
THE GRANDCHILD AND:
1)THE COURT FINDS 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; AND
2)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?
SYNOPSIS
This non-controversial bill seeks to add stepparent adoptions to
the list of circumstances that allow a grandparent to seek
visitation with a minor child when the natural or adoptive
parents are still married. In support of the bill, various
groups including the Family Law Section of the State Bar, the
California Alliance for Retired Americans, the Foundation for
Grandparenting, and the Grandkidsandme Foundation note how
helpful having grandparents in children's lives can be,
especially when the trauma of divorce and separation confront
the state's families. The existing protections that provide
appropriate discretion to family law judges in these instances,
including the requirement to balance the interest of the child
in having visitation with the grandparent against the right of
the parents to exercise their parental authority, are retained
in the measure, and there is no known opposition to the bill.
SUMMARY : Seeks to amend the grandparent visitation statute in
the Family Code in the limited circumstance when a stepparent
adopts the grandchild. Specifically, this bill adds stepparent
adoption as one of the limited circumstances when a family court
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may permit reasonable grandparent visitation with a grandchild
while the natural or adoptive parents are married only when the
court finds it to be in the grandchild's best interest, and the
court (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, 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.
EXISTING LAW :
1)Authorizes the court to grant reasonable visitation to a
grandparent if visitation is found to be in the best interests
of the child, and if either parent of a minor is deceased, to
the children, siblings, parents, and grandparents of the
deceased parent. (Family Code Section 3102 and 3103.)
2)Provides that a grandparent may not file a petition for
visitation while the parents are still married unless the
parents are living separately on a permanent basis, one of the
parents has been absent for more than one month without the
other spouse knowing the whereabouts of the other spouse, one
of the parents joins in the petition of the grandparents, or
the child is not residing with either parent. (Family Code
Section 3104(b).)
3)Requires that a court, when considering a grandparent petition
for visitation, find 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. (Family Code Section 3104(a)(1).)
4)Requires that the court, when considering a grandparent
petition for visitation, balance the interest of the child in
having visitation with the grandparent against the right of
the parents to exercise their parental authority. (Family
Code Section 3104 (a)(2).)
5)Provides there is a rebuttable presumption that the visitation
of a grandparent is not in the best interest of a child if the
natural or adoptive parents agree that the grandparents should
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not be granted visitation rights. (Family Code Section
3104(e).)
FISCAL EFFECT : This bill is currently keyed non-fiscal.
COMMENTS : This bill seeks to add stepparent adoptions to
the list of circumstances that would allow a grandparent to
petition for visitation when a minor child's natural or
adoptive parents are still married. In support of the
bill, the author states:
It is common knowledge that children who have strong,
loving adults in their lives thrive. Grandparents can
be that strong, loving adult for a child. These
relationships become even more vital during times when
families are dissolving and changing? Simply, AB 2517
would allow grandparents to petition the court for
visitation of their grandchildren after a stepparent
adoption has occurred. This will allow the court to
decide if visitation with the grandparent is in the
best interest of the child. If so, it will allow
grandchild/grandparent relationships to continue when
they are needed most.
Legal Backdrop : While "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" (Troxel v.
Granville, (2000) 530 U.S. 57, 66), grandparents in California
have been granted a reasonable and thoughtful statutory right by
the Legislature to visit with their grandchild. (See, e.g.,
White v. Jacobs, (1988) 198 Cal. App. 3d 122, 124-125.)
In California, the Legislature enacted Family Code Section 3104
to permit grandparents to petition the family court for
reasonable visitation with their minor grandchildren. The
statute was subsequently challenged as being unconstitutional in
the case of In re Marriage of Harris. However the California
Supreme Court thereafter held that Family Code Section 3104,
which this measure seeks to amend, is not unconstitutional.
Unlike the Washington statute at issue in the Troxel case noted
above, the Court held that California's so-called grandparent
visitation statute, Family Code Section 3104, is narrowly
tailored to only allow grandparent visitation, and the
rebuttable presumption in the statute against grandparent
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visitation gives the parent's decision special weight when the
court considers whether to grant any visitation with
grandparents.
Currently, Family Code Section 3104 only allows grandparents to
petition for visitation with their grandchild while the child's
natural or adopted parents are still married under limited
circumstances that do not yet include the circumstance when a
stepparent adopts the grandchild. Presently, a stepparent may
adopt a minor child, and thereafter the parental rights of the
absent parent are extinguished, the stepparent assumes the
parental rights of the absent biological parent, the minor
child's natural or adoptive parents are married, and the
grandparents are then essentially statutorily barred from
seeking visitation. This measure addresses that conundrum,
permitting but certainly not requiring a family court to allow
for reasonable visitation by the grandparents with the
grandchild only when the court 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, and 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.
The Lopez Facts This Bill Thoughtfully Addresses : This was the
situation in the case of Lopez v. Martinez, (2000) 85 Cal. App.
4th 279. In Lopez, the mother of a child moved in with her
parents when the child's father left. The mother lived with the
grandparents for several years until she married, at which time
she denied the grandparents visitation of the minor child. The
grandparents petitioned for visitation of the child under Family
Code Section 3104, citing the child's father's whereabouts were
unknown to meet the circumstances required to seek visitation.
During that time, however, the child's stepfather adopted the
child, and the mother moved to dissolve the visitation order.
The Court of Appeal found that the adoption by the stepfather
created a change in circumstance that required the court to
dissolve the visitation order. The stepfather was legally
considered the child's adopted father and was married to the
child's mother. As none of the other circumstances were present
under Family Code Section 3104, under the plain language of the
statute the court had to dissolve the visitation order at the
parent's request.
It is important to note that this measure, while adding
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stepparent adoption to the list of circumstances that would
allow grandparents to petition the court for visitation of their
minor grandchildren, it would not change the amount of deference
the court gives the parent's decision to deny visitation to
grandparents. Nor does it appear to alter the rights of
parents, or adoptive stepparents, in any way, but instead merely
adjusts the conditions necessary to seek reasonable grandparent
visitation rights.
ARGUMENTS IN SUPPORT : In support of the bill, the Family Law
Section of the State Bar (Flexcom) writes that:
The addition of 3104(b)(5) establishes a limited
class of grandparents, which have standing to request
grandparent visitation. It is important to note that
the protections in place in the statute provide that
the petitioning grandparents "must" have an
established relationship with the grandchild and also
that there remains the "presumption" that grandparent
visitation is not in the best interest of the
grandchild, if both parents in an intact marriage
object to said visitation request. Although
grandparent visitation litigation is expensive and
many times initiated or opposed in bad faith, children
cannot have too many grandparents, if those
grandparent relationships are determined to be in
their best interest.
The California Alliance for Retired Americans writes in
support that "We believe that the support of grandparents for
their grandchildren is in the best interests of the child
(ren) especially during a time of crisis such as a divorce."
The Foundation for Grandparenting also writes in support that
research outlines the critical nature of the
grandparent-grandchild relationship and how facilitating this
relationship benefits all generations. In addition, the
Grandkidsandme Foundation writes in support that:
There is no single answer for dealing with your adult
children and grandchildren's pain during the time of
divorce. Each family must discover its own path, but
concern, empathy and love displayed in a variety of
ways by both the parents and grandparents are
important? If grandparents can remain neutral in their
involvement, they will be in a better position to
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assist their children and grandchildren? During this
critical time, a grandparent needs to be a model of
unconditional love for the parents and the
grandchildren.
REGISTERED SUPPORT / OPPOSITION :
Support
Family Law Section of the California State Bar (Flexcom)
CA Alliance for Retired Americans
The Foundation for Grandparenting
The Grandkidsandme Foundation
Many individuals
Opposition
None on file
Analysis Prepared by : Drew Liebert and Amanda Kirchner / JUD /
(916) 319-2334