BILL ANALYSIS �
AB 1628
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Date of Hearing: March 25, 2014
ASSEMBLY COMMITTEE ON JUDICIARY
Bob Wieckowski, Chair
AB 1628 (Fox) - As Introduced: February 10, 2014
SUBJECT : GRANDPARENTS: VISITATION RIGHTS
KEY ISSUE : IF PARENTS ARE MARRIED, SHOULD GRANDPARENTS BE
PERMITTED TO PETITION THE COURT FOR VISITATION WITH THEIR
GRANDCHILDREN IF ONE OF THE PARENTS IS INCARCERATED?
SYNOPSIS
The United States Supreme Court has made clear that fit parents
have constitutionally protected rights to raise their children
as they choose. (Troxel v. Granville, 530 U.S. 57 (2000).)
While current California law allows grandparents to seek
visitation with their grandchildren, if the parents do not
support the requested visitation, state law establishes
constitutionally necessary presumptions that such visits are not
in the child's best interest. If the parents are married, the
law further limits the circumstances when grandparents may
petition for visitation. These narrow circumstances include
when one parent is out of the house or if one parent joins in
the petition with the grandparents. This bill seeks to extend
those situations to include where one of the child's parents has
been incarcerated or involuntarily institutionalized to the
limited list of circumstances where a grandparent may petition
the court for visitation with his or her grandchild while the
child's parents are married. This bill is narrowly crafted to
avoid constitutional infirmities and is supported by, among
others, the California Catholic Conference of Bishops, the
Family Law Section of the State Bar, and Legal Services for
Prisoners with Children. It has no opposition.
SUMMARY : Allows grandparents to petition the court for
visitation with a grandchild if one of the parents is
incarcerated or involuntarily institutionalized. Specifically,
this bill allows a court, on petition by a grandparent of a
minor child whose parents are married, to grant reasonable
visitation to the grandparent if both of the following are true:
1)One of the parents is incarcerated or involuntarily
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institutionalized; and
2)There is a preexisting relationship between the grandparent
and the grandchild that has resulted in such a bond 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.
EXISTING LAW :
1) Authorizes the court, if either parent of a minor child
is deceased, to grant reasonable visitation to the
children, siblings, parents or grandparents of the deceased
parent if visitation is found to be in the best interests
of the child. (Family Code Section 3102. Unless stated
otherwise, all further statutory references are to that
code.)
2) Allows a court to grant reasonable visitation to a
grandparent of a minor child if the court determines that
visitation by the grandparent is in the best interest of
the child. Creates a rebuttable presumption that
visitation is not in the child's best interest if the
child's parents agree that the grandparent should not be
granted visitation. (Section 3103.)
3) Allows the court to grant reasonable visitation rights
to a grandparent if the court finds that there is a
preexisting relationship between the petitioning
grandparent and the child that has engendered a bond such
that visitation is in the best interest of the child.
Requires the court, when considering a grandparent petition
for visitation, to balance the interest of the child in
having visitation with the grandparent against the right of
the parents to exercise their parental authority. (Section
3104(a).)
4) Prevents grandparents from petitioning for visitation
under # 3), above, if the parents are married, unless at
least one of the following exists:
a) The parents are currently living separately and apart on
a permanent or indefinite basis;
b) One of the parents has been absent for more than one
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month without the other spouse knowing the whereabouts of
the absent spouse;
c) One of the parents joins in the petition with the
grandparents;
d) The child is not residing with either parent; or
e) The child has been adopted by a stepparent. (Section
3104(b).)
5) Establishes a rebuttable presumption that the visitation
in # 3), above, is not in the child's best interest if the
parents agree that the grandparent should not have
visitation rights. (Section 3104(e).)
6) Establishes a rebuttable presumption that the
visitation, in #3), above, is not in the best interest of
the child if the parent with sole legal and physical
custody of the child or, in the absence of an order, the
parent with whom the child resides objects to the
visitation. (Section 3104(f).)
FISCAL EFFECT : As currently in print this bill is keyed
non-fiscal.
COMMENTS : Fit parents have constitutionally protected rights to
make decisions about the care and control of their children.
California has long balanced these fundamental rights of parents
with the statutory ability of grandparents, in narrowly tailored
circumstances, to seek visitation with minor grandchildren.
This bill adds the incarceration or involuntary
institutionalization of one of the parents to the short list of
circumstances when a grandparent may, while the child's parents
are married, petition the court for reasonable visitation with
his or her grandchild.
In support of the bill, the author writes:
Grandparents play an important role in the lives of
children with incarcerated parents. Often times for
incarcerated mothers, grandparents provide primary care to
children. 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
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one of these circumstances. AB 1628 supports the care,
stability and development of children under unfortunate
circumstances.
Constitutional Limits on Grandparents' Rights to Visit Their
Grandchildren : The Due Process Clause of the Fourteenth
Amendment protects a parent's right "to make the decisions
concerning the care, custody, and control of their children."
(Troxel v. Granville, 530 U.S. 57, 66 (2000).) In that case, a
mother challenged Washington State's visitation statute that
allowed "any person" to petition for visitation at "any time"
and gave the state courts the authority to grant these petitions
whenever they felt the visitation would serve the child's best
interest. The trial court had granted visitation with the
grandparents against the mother's objections, despite her having
sole custody of her child. The Supreme Court determined that
the Washington statute interfered with the fundamental rights of
parents to raise their children as they see fit. While there
are limits on the rights of parents, the Supreme Court found
that as long as the parent is providing adequate care for his or
her child, there will generally be no reason for the state or
court to question the parent's decisions regarding such care.
"[S]o long as a parent adequately cares for his or her children
(i. e., is fit), there will normally be no reason for the State
to inject itself into the private realm of the family to further
question the ability of that parent to make the best decisions
concerning the rearing of that parent's children." (Id. at
68-69.) Thus, when a fit parent makes a decision regarding his
or her child, it is typically considered to be in the child's
best interest.
California Law Protects Constitutional Rights of Parents to
Raise Their Children, But Still Allows For Grandparents to Seek
Visitation : California allows grandparents to petition for
visitation under several statutes, but all have been narrowly
construed to ensure that the constitutional rights of fit
parents are not violated. For example, several cases have held
that Section 3102, which allows relatives, including
grandparents, to visit the child of a deceased parent, was
applied unconstitutionally when used to grant visitation rights
to grandparents against the wishes of the fit, surviving parent.
(See, e.g., Zasueta v. Zasueta, (2002) 102 Cal. App. 4th 1242;
Kyle O. v. Donald R. (2000) 85 Cal. App. 4th 848.)
When both parents are living and married, California law allows
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grandparents to petition for visitation in five specific
instances. These instances are when: the parents are separated,
whether on a permanent or indefinite basis; one of the parents
has been absent for more than one month without the other spouse
knowing his or her whereabouts; one of the parents joins in the
petition with the grandparents; the child is not residing with
either parent; or the child has been adopted by a stepparent.
Before visitation can be granted, the court must find there is a
preexisting relationship between the grandparent and the
grandchild that has resulted in such a bond that that visitation
is in the best interest of the child. In addition, and key to
protecting the constitutional rights of the parents to raise
their children, the court must balance the interest of the child
in having visitation with the grandparents against the right of
the parents to exercise their parental authority. Current law
further protects parental rights by providing a rebuttable
presumption that the visitation is not in the best interest of
the child if both parents agree the grandparent should not have
visitation. Additionally, there is a rebuttable presumption
that the visitation is not in the best interest of the child if
the parent with sole legal and physical custody of the child, or
the parent with whom the child resides in the absence of a
custody order, objects to the visitation. Taken together, these
provisions, which protect the fundamental right of parents to
raise their children, have, when properly applied, protected
California's grandparent visitation provisions from
constitutional challenge. When these provisions have not been
applied properly, appellate courts have not been hesitant to
reverse trial courts' granting of visitation to grandparents.
(See In re Marriage of Harris (2004) 34 Cal. 4th 210; Ian J. v.
Peter M. (2013) 213 Cal. App. 4th 189.)
This Bill Narrowly Expands Grandparent Rights When One Parent is
Incarcerated or Institutionalized : This bill provides
grandparents with one more circumstance to petition for
visitation when the child's parents are married - when one
parent is incarcerated or involuntarily institutionalized. This
allows grandparents to petition for visitation when a parent is
absent from the home because of imprisonment. However, because
this bill still requires courts to balance the interest of the
parents and provides the same rebuttable presumptions against
visitation if the parents agree, it should meet the
constitutional requirements set forth in Troxel.
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ARGUMENTS 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 which will help preserve family
ties and provide some stability and consistency for
children of incarcerated parents.
REGISTERED SUPPORT / OPPOSITION :
Support :
American Federation of State, County and Municipal Employees
(AFSCME), AFL-CIO
Association of Family Conciliation Courts
California Catholic Conference of Bishops
Family Law Section of the State Bar
Legal Services for Prisoners with Children
Opposition :
None on file
Analysis Prepared by : Leora Gershenzon and Marisa Shea / JUD. /
(916) 319-2334