BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Joseph L. Dunn, Chair
2005-2006 Regular Session
AB 2517 A
Assembly Member Tran B
As Introduced
Hearing Date: June 27, 2006 2
Family Code 5
BCP:rm 1
7
SUBJECT
Minor Children: Visitation Rights
DESCRIPTION
This bill would allow a grandparent to petition the court
for visitation with their grandchild when the natural or
adoptive parents are married, and the grandchild has been
adopted by a stepparent.
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).
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, grandparents are restricted in their ability to
petition for visitation of their grandchildren when the
natural or adoptive parents are married, unless one of
(more)
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several circumstances exists. AB 2517 would additionally
authorize petitions for visitation when the "child has been
adopted by a stepparent." That change would further
facilitate grandparent visitation in cases where the family
has become divided over the years, and remove the
possibility of a stepparent preventing visitation with the
child by adopting that child.
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 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
3104(a).]
Existing law prevents grandparents from petitioning for
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
3104.]
This bill would add when a "child has been adopted by a
stepparent" to the above list of circumstances where a
grandparent can file a petition for visitation.
COMMENT
1. Stated need for the bill
According to the author, and numerous supporters,
[This bill] would allow grandparents to petition the
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court for visitation of their grandchild, after their
grandchild has been adopted by a new stepparent. The
grandparent/grandchild relationship is one that is
especially vital to retain in today's changing
families.
Often families are ripped apart through divorce or
other negative circumstances. Solid relationships
that children could once count on, are then in doubt
and become less stable. Stability can come through
maintaining strong grandparent/grandchild
relationships through those family changes.
Grandparents often play many roles in a family. They
offer emotional support and comfort, relay family
history, and give advice.
. . .
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 the grandchild/ grandparent relationships to
continue where they are needed most.
2. Proposed change would alter the outcome of Lopez v.
Martinez
In Lopez v. Martinez (2005) 85 Cal. App. 4th 279, the
court terminated the grandparents' visitation with their
grandchild after the stepparent adoption of that child.
That decision was based on their interpretation of
current Family Code statutes restricting the situations
were a grandparent can petition for visitation with their
grandchild.
Specially, if the natural or adoptive parents of the
grandchild are married, a grandparent can only petition
under certain limited circumstances. Moreover, if those
limited circumstances cease to exist, the parent or
parents can petition the court to terminate grandparent
visitation. The court is required to grant that
petition. [Fam. Code 3104.]
In Lopez, the grandparents raised their grandchild for
four and a half years in their home with his mother. The
mother subsequently married and moved with her child to
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into another residence with her husband. The
grandparents subsequently petitioned for visitation based
on the provision that allows such visitation when "[o]ne
of the parents has been absent for more than one month
without the other spouse knowing the whereabouts of the
absent spouse." [Fam. Code 3104(a)(3).] The court
granted that petition after finding the requisite
relationship between the grandparents and grandchild, and
balancing the interest of the child in visitation against
the right of the parents to exercise their authority over
the child. Subsequently, the mother's new husband
adopted the grandchild, and the mother petitioned the
court to terminate the grandparent's visitation due to
the change in circumstances. The trial court found that
the adoption did not constitute changed circumstances
warranting termination of visitation, but the appellate
court disagreed. [85 Cal. App 4th at 288-89.]
The Court of Appeal's decision was based on a literal
reading of the statute that limits grandparents'
petitions for visitation when the natural or adoptive
parents of a child are married. [Fam. Code 3104(b).]
Once the child was adopted by the stepparent, that
individual became the child's parent. Thus, the basis
for the grandparent's visitation under the statute, that
one parent was absent, was removed. In making its
decision, the Court of Appeal noted that "this may be one
of those relatively rare cases where adherence to a
statutory rule may work an injustice in the particular
case." [85 Cal. App. 4th at 288.]
Accordingly, AB 2517 seeks to address this situation by
specifically adding when a "child has been adopted by a
stepparent" to the list of situations where a grandparent
can petition for visitation with their grandchildren.
This addition removes the ability for a stepparent to
adopt that child to prevent a grandparent otherwise found
to qualify for visitation, from having that visitation.
3. Lack of constitutional problems with the proposed
language
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. [Troxel v.
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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 either 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 their children.
Support: Family Law Section of the State Bar; Marian
Bergeson, Former State Senator, AARP; California
Alliance for Retired Americans; Foundation for
Grandparenting; Grandkidsandme Foundation; 175
individuals
Opposition: None Known
HISTORY
Source: Author
Related Pending Legislation: None Known
Prior Legislation: SB 1406 (Kuehl, 2002), would have
revised provisions relating to child custody
mediators. (This bill died in Senate Rules.)
SB 174 (Kuehl, Chapter 1077, Statutes of
2002), authorized the voluntarily adoption of
a confidential mediation program that would
prohibit the mediator from making a
recommendation as to custody or visitation to
anyone other than the disputing parties,
except as specified.
AB 2209 (Honda, 1998), would have revised
provision relating to stepparent and
grandparent visitation. (This was never
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heard.)
Prior Vote: Asm. Floor (Ayes 79, Noes 0)
Asm. Jud. (Ayes 9, Noes 0)
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