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Grandparents Need Clear and Convincing Proof to Overcome Troxel

By Robyn Hagan Cain on November 15, 2011 | Last updated on March 21, 2019

Last month, we wrote about a California Court of Appeals case in which the court ruled that a surviving parent could not use spite as a reason to deny a grandparent visitation rights. This week, we have another California case that adds context to the” anti-spite” determination.

While California courts will not permit a surviving parent to abuse the Supreme Court’s Troxel v. Granville decision, a grandparent petitioning for visitation rights must provide clear and convincing evidence to overcome the presumption that the parent denying visitation is acting in the best interest of the child.

In this case, grandmother and mother "do not get along." Among other disputes, they had differences of opinion concerning father's long-term use of drugs. Father died in 2010 of a drug overdose and left two suicide notes. Grandmother disputed the coroner's determination of death by suicide and told the coroner that mother may have been responsible for his death.

Before his death, father had filed a "Petition to Establish Parental Relationship," and grandmother petitioned for joinder to assert grandparent visitation rights. Mother opposed both. The trial court granted grandmother's petition for joinder, but ultimately denied her visitation request. The court noted that, although grandmother had a relationship with the child, she failed to "demonstrate a deep and abiding relationship."

Grandmother appealed, arguing that the trial court erred in requiring clear and convincing evidence that visitation was in the child's best interest. The appellate court affirmed the trial court, and expressly stated clear and convincing evidence is required to overcome the presumption that a fit parent will act in the best interest of the child.

In the opinion, the court wrote, "If grandparent visitation is in the grandchild's 'best interest,' it is not 'detrimental.' If grandparent visitation is not in the grandchild's 'best interest,' it is 'detrimental.'"

While not insurmountable, the appellate court adopted the clear and convincing burden to promote a parent's constitutionally protected "first" choice. The higher evidentiary burden preserves the constitutionality of California Family Code Section 3102, which provides for grandparent visitation rights, and insures against erroneous fact finding.

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