BILL ANALYSIS �
AB 1628
Page 1
ASSEMBLY THIRD READING
AB 1628 (Fox)
As Introduced February 10, 2014
Majority vote
JUDICIARY 10-0
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|Ayes:|Wieckowski, Wagner, | | |
| |Alejo, Chau, Dickinson, | | |
| |Garcia, Gorell, | | |
| |Maienschein, Muratsuchi, | | |
| |Stone | | |
|-----+--------------------------+-----+--------------------------|
| | | | |
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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
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.
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
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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.
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.
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
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.
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.
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.
FISCAL EFFECT : None
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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 one of
these circumstances. AB 1628 supports the care,
stability and development of children under
unfortunate circumstances.
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
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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 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 Family Code 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
grandparents to petition for visitation in five specific
instances. These instances are when: 1) the parents are
separated, whether on a permanent or indefinite basis; 2) one of
the parents has been absent for more than one month without the
other spouse knowing his or her whereabouts; 3) one of the
parents joins in the petition with the grandparents; 4) the
child is not residing with either parent; or 5) 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
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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 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.
Analysis Prepared by : Leora Gershenzon / JUD. / (916)
319-2334
FN: 0003087