There are some cases I'm absolutely certain are wrong. There are others that I think about for a long time and, after lots of analysis, think came out the wrong way. (There are also lots and lots of cases I think come out right, but those usually aren't nearly as interesting to talk about.)
Then there are cases like this one.
This opinion falls into the relatively rare category of cases that I'm not sure that I even understand. A status I find myself in even after reading over the thing again and again.
It's not that I don't understand the court's analysis. I do. I just don't completely understand the statutory structure. And without being totally confident of that pretty basic thing, I'm not 100% sure that my instinctive reaction to the case is right.
But I'm not going to let that stop me. So notwithstanding my relative incompetence in the area of complex family law, I'll share with you my thoughts on this case. Because I have a strong suspicion that even though I might end up reaching the same result, I'd get there in a very, very different way than the Court of Appeal does.
Here's the part I understand:
The case is all about whether grandparents get a right to visit their grandkids. The general rule in this situation -- backed up by a statute -- is that when the kids' parents are alive and together, there's no right to visitation. The theory being that the parents should get to decide who the kids should see, so if they have the grandparents, or think they're a bad influence, tough.
That's understandable. So are at least most of the statutory exceptions. So, for example, if the parents are permanently separated, yeah, the grandparents can ask to visit their grandkids. (Remember that the court doesn't have to let 'em; we're only talking about the right to ask.) This makes sense. Maybe one of the parents now hates the other one -- and, derivatively, his/her in-laws -- so wants to lash out at the grandparents. Grandparents get to go to court if they want.
Ditto if one of the parents has been gone for over a month and the other parent doesn't know where s/he is. Again: Makes sense. Don't want the remaining parent to have a nonreviewable veto over the ability of the parents of the missing parent to see the grandkids. Same exception when one parent joins the grandparents in the petition. Same exception when the grandkid isn't residing with either parent.
All this I get. Basically, if the parents are living together, and are unified, and don't want grandparents to see the kids, that's it. The parents have that right.
I also fully understand why the statute expressly refers to both natural and adoptive parents. No reason to make a distinction between the two. Same rules apply whether the parent(s) "naturally" had the kid or adopted the kid. A kid's a kid.
Here's the part I don't understand:
The last exception is when "the child has been adopted by a stepparent". Now, I totally understand why that exception was added. The Legislature did so in response to a particular Court of Appeal decision in 2000. There, the father was gone, and the grandparents were raising the grandkid alongside the kid's mother. Then the mother remarried and left the grandparents, and didn't want the grandparents seeing the kid. Too bad. Grandparents had a right to petition to visit. But once the (new) husband formally adopted the kids, now both "parents" wanted to block the visits. So the Court of Appeal said that while it's potentially unjust, that's what the statute says, so no more grandparent visitation.
At which point the Legislature changed the rule. Precisely to change the result in that case. Now the adoption wouldn't block the grandparents from seeking to visit.
The problem is that the creation of this exception seems to me to do precisely what the trial court held that it indeed does: violates the Equal Protection Clause by treating adoptive parents differently than natural parents. 'Cause that's what it indisputably does. At least as far as I can understand it.
Take three situations. Situation 1: Husband and Wife have a "natural" kid. Situation 2: Husband and Wife jointly adopt a kid. Situation 3: Wife adopts a kid, Husband comes along, then Husband adopts the kid too.
Assume that in all three situations Husband and Wife are still married and living together. Assume that in all three situations both Husband and Wife hate Wife's parents. So don't want any visitation by these grandparents.
You'd think that all three situations would be treated identically, right? It's their kid in all three settings. "Naturally" in the first one, and by adoption in the other two. But that doesn't matter. A kid's a kid. A family's a family. Doesn't matter if it's "natural" or by adoption or when. Two parents having one kid = autonomy over whether the kid sees the grandparent.
Yet the statute says otherwise. The statute gives the parents a veto in Situations 1 and 2, but not in 3. Even though the three families are identical families in every single sense of the word.
That does indeed seem to me to violate the Equal Protection Clause. There's no reason to treat a "biological" family different than an "adoptive" family different than any other family. The fact that a "stepparent" adopted the kid in (3) is totally irrelevant. Any more than the fact that a "stranger" adopted the kid in (2). Family's family.
The Court of Appeal, however, goes down a different track. Saying that this whole thing is subject merely to "rational basis" review and that it makes sense because it only marginally interferes with parental rights. That seems wrong on multiple levels. For one thing, we're distinguishing between types of families, which strongly implicates the most intimate of relations, so I'm not at all certain that strict (or at least intermediate) scrutiny applies. And for another, even if rational basis review properly applies, I still don't see the basis: even if parental rights are only "slightly" infringed (and I'm not at all sure that's even right), the distinction between Situations 1 through 3 doesn't have ANY foundation in fact. There's no reason for a "slight" infringement in (1) (or 3) that doesn't equally apply in the other.
Which is what you do with Equal Protection review. You don't focus on the severity of the difference. You focus on whether there's a reason. And, here, there's not. And the Court of Appeal doesn't even seem to posit one.
So at least as I understand the statute, the constitutional analysis here just seems completely wrong.
Now, admittedly, one might reach the same result obtained by the Court of Appeal as a matter of remedy. And that I might have some sympathy with. Even if the statute violates the Equal Protection Clause (and I think it well might), that doesn't necessarily tell you which way it cuts. Maybe you strike the offending exception: which would, admittedly, change the result here. Or, alternatively, you strike the other side of the equation, and apply the rule equally to Situations 1 through 3. That's permissible too. Which means the grandparents still get to apply for visitation here (which is what the Court of Appeals holds), and only means that similarly-situated grandparents might get to do the same in other situations as well pursuant to the Equal Protection Clause.
In the end, I just don't get why the statutory exception here matters. And particularly in an era in which families are constantly changing (adoption, same-sex marriage, in vitro fertilization, etc.), I think it's critically important to not permit the Legislature to single out a particular familial form and favor (or disfavor) it.
Single people who adopt are parents. Couples who adopt are parents. Single people who adopt and then marry another single person who also adopts are parents. Couples who have a biological child are parents. To reiterate: Parents are parents. To say that some of these people are more "parents" or have more autonomy over their children seems wrong. As well as precisely what the Equal Protection Clause was designed to prohibit.
So maybe the Court of Appeal could properly reach this result. But not this way. Not -- at least as far as I understand it -- at all.
