Written by attorney Anthony Payman Azemika

A grandmother is awarded visitation over father's objection.

A California Court of Appeals has ruled that a Trial Court was not wrong by refusing to deny visitation to Children’s grandmother, over Father’s objections, because Father’s reasons for objecting to visitation were neither reasonable nor credible, Father admitted that visitation would be in Children’s best interests, and Father "practically admitted" that he was only denying visitation out of spite. In the case ofHoag v. Diedjomahor, Mother and Father were married in 2005. They lived with Mother’s mother in La Habra. Their first child was born in 2006. Mother and Father separated in 2007, and Father moved to Desert Hot Springs.

Mother and Father reconciled in April of 2008, and Mother, child, and grandmother all moved into Father’s apartment in Desert Hot Springs. Mother gave birth to their second child in late 2008. As she had with the first child, grandmother helped to care for the second child.

In February 25, 2009, Mother filed for divorce. Mother, children, and grandmother then moved in with Mother’s brother. In March 29, 2009, while staying at Mother’s brother’s house, Mother died of undiagnosed epilepsy. Children continued to live with grandmother and Mother’s brother, while Father visited them "every couple of days."

In early May of 2009, grandmother told Father that she planned to seek guardianship of children. Father then demanded that grandmother turn children over to him, and he cut off all contact between grandmother and children. On May 5, 2009, grandmother filed a petition for guardianship, claiming that Father’s disabling accident made him unable to care for the children and that Father was an "undocumented alien" subject to deportation. Father acknowledged that he was confined to a wheelchair for seven months, but claimed to have entered U.S. legally and to have applied for permanent residency. In response to grandmother’s allegations, Child Protective Services investigated, but found "no concern."

On May 14, 2009, Trial Court ordered grandmother and Father to put together a visitation schedule. However, Father offered visitation only on days that grandmother had to work. Grandmother was finally able to visit after three weeks had passed.

In June of 2009, Trial Court ordered visitation according to its schedule. As guardianship progressed, Father learned that while Mother was a minor, her brother had admitted touching her "improperly." In addition, it came to light that in 1993, grandmother had had Mother and her brother removed from her custody due to her drug use, but had got them back later.

In October 2009, grandmother filed petition for visitation. In December 2009, Trial Court dismissed grandmother’s guardianship petition. In January 2010, grandmother’s visitation petition went to mediation, after which mediator recommended that grandmother have visitation for three hours on Wednesday evenings and 48 hours every other weekend, plus daily telephone calls.

Trial Court subsequently awarded grandmother temporary visitation according to mediator’s recommendation. By the time of trial, grandmother had moved into the same apartment complex where Father resided. At trial, Father conceded that children loved grandmother, but opposed court-ordered visitation because of grandmother’s efforts to take the children away from him and her claims that she raised the children. Father contended that Wednesday visits interfered with his study time with the children and that visits with grandmother would mean that the children came in contact with Mother’s brother. Father opposed any visitation, but if Trial Court ordered some, Father wanted it limited to eight hours every other Saturday, one week during summer vacation, eight hours on grandmother’s birthday, and only two telephone calls per week. Father’s attorney conceded that visitation would be in the children’s best interests. Grandmother asked Trial Court to make temporary visitation orders its permanent orders.

Other evidence showed that Mother’s Brother’s alleged molestation of Mother happened when they were 12 and 5 years old respectively, grandmother was no longer living with Mother’s Brother, and Mother’s Brother had not molested the children during the time that the children lived with him. Grandmother’s drug use was similarly remote in time, was temporary, and had not been repeated.

In its statement of decision, Trial Court found that California Family Code Section 3102 is unconstitutional if applied to a "surviving parent who is neither unfit nor opposed to occasional visitation" and that Father is a fit parent. Trial Court further found that Father’s "offers of reasonable visitation are feigned at best and without any substance." Trial Court also found that Father’s claims of having offered reasonable visitation were not credible, as were Father’s "purported concerns" regarding grandmother’s past drug use and Mother’s Brother’s alleged sexual abuse. Trial Court also determined that visitation with grandmother would be in the children’s best interests. Accordingly, Trial Court granted grandmother’s petition and ordered the same visitation as in its previous temporary order, except for reduction of telephone visits to twice weekly.

Father appealed, but California Court of Appeals has now affirmed the Trial Court’s decision. The Appellate Court found that (1) pursuant toKyle O.(2000) 85 Cal.App.4th 848, a surviving parent who is a fit parent and has not cut off grandparent visitation completely may determine visitation without a court order; (2) pursuant toFenn(2003) 109 Cal.App.4th 1466, application of California Family Code Section 3102 is not unconstitutional where a surviving parent imposes an extremely restricted visitation conditions; (3) custodial parent’s visitation decisions are presumptively valid and entitled to "special weight," but are not immune from judicial review; (4) Trial Court gave appropriate weight to Father’s visitation decisions, but properly found that presumption that they were valid had been overcome; (5)Kyle factually distinguishable because Father failed to offer meaningful visitation; and (6) grandmother was not required to request voluntary visitation before filing a petition for visitation. Therefore, the Appellate Court ruled that Trial Court did not err in ordering visitation for grandmother.

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