Monday, November 14, 2011

Rich v. Thatcher (Cal. Ct. App. - Nov. 14, 2011)

The California Court of Appeal starts the week by issuing an opinion that really should go up to the California Supreme Court.

Sure, maybe it's not as clearly-review-worthy as the health care challenges that the U.S. Supreme Court decided to review today.  But it still involves an issue that cries out for the review by the California Supreme Court:  When do grandparents get to see their children notwithstanding the objection of the child's parent(s)?  Here, for example, Father dies, and Mother doesn't want Father's parents to have any visitation with the kid.  We know the standard, and it's the usual one in these cases.  Best interests of the child.  But what evidentiary standard do we apply?  Preponderance of the evidence?  Clear and convincing evidence?  Something else?

Justice Yegan, in a very short opinion (seven double-spaced pages), holds that the standard should be clear and convincing evidence.  But he does so relying almost exclusively on an opinion by Justice Chin in 2004.  But that was a concurring and dissenting opinion joined by . . . no one else.  At best, Justice Chin had one other potential vote for it (Justice Brown), but the majority clearly didn't want to sign onto this point.  And Justice Chin was perhaps right (in footnote 6 of his opinion) when he argued that it was somewhat strange that the Court did not decide whether the clear and convincing evidence test was applicable even though the issue was raised and briefed by the parties.  But that might have been a pretty good indication of their call on the issue, particularly when Justice Chin decided that he would raise the issue and still couldn't get anyone to formally sign on.

The California Supreme Court instead held that the statutory scheme gave a rebuttable presumption in favor of the parent's decision to exclude the grandparents.  That seems right.  The issue then becomes whether the statute (or the Constitution) requires something more.  Justice Yegan agrees with Justice Chin that it does, arguing that the Due Process Clause grants the parents the primary right to raise the child.  There's a decent argument in that regard.  But it was also one that the California Supreme Court didn't seem to find especially compelling, arguing that granting visitation didn't detract from that right -- that letting grandparents into the kid's life when there was a finding that it was in the kid's best interest did not negate the parent's authority over the child.

So one view might be that what the California Supreme Court did in Marriage of Harris was correct, and that the appropriate test is the rebuttable presumption the Court created therein.  Or another view might be that something more (like the clear and convincing evidence test) is the proper one; that's what Justice Chin argued -- saying that a rebuttable presumption was "meaningless" -- and Justice Yegan and the rest of the panel agrees.

But whatever your view of this issue, its proper resolution should not depend upon which panel one happens to draw on appeal.  The California Supreme Court did something in Marriage of Harris.  Whether that's the right (or sufficient) take was at issue in that case, and prompted a split opinion.  The subsequent resolution of this issue by the Court of Appeal should thus be reviewed.  And it's an issue of sufficient importance that we shouldn't wait to do so.  The California Supreme Court should grant review of this case.