Ed H. v. Ashley C.

221 Cal. Rptr. 3d 911, 14 Cal. App. 5th 899, 2017 WL 3634152, 2017 Cal. App. LEXIS 735
CourtCalifornia Court of Appeal, 5th District
DecidedAugust 24, 2017
DocketD070346
StatusPublished
Cited by11 cases

This text of 221 Cal. Rptr. 3d 911 (Ed H. v. Ashley C.) is published on Counsel Stack Legal Research, covering California Court of Appeal, 5th District primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Ed H. v. Ashley C., 221 Cal. Rptr. 3d 911, 14 Cal. App. 5th 899, 2017 WL 3634152, 2017 Cal. App. LEXIS 735 (Cal. Ct. App. 2017).

Opinion

O'ROURKE, J.

*902Ed and Yvonne H., paternal great-grandparents, appeal from an order denying their request for joinder and petition to seek visitation with their great-grandchildren. Ed and Yvonne's primary contention on appeal is that the court erred in finding they lacked standing to join as parties seeking visitation. Specifically, they argue the court erred by determining that Family Code 1 sections 3103 and 3104, which allow a court to grant visitation rights to grandparents if certain conditions are met, do not permit great-grandparent visitation. Alternatively, Ed and Yvonne contend the court erred by not considering that their grandson, the father of the great-grandchildren, consented to and joined in their request for visitation, and by not considering whether they had standing as psychological or de facto parents. We conclude that the Legislature did not intend section 3104 of the grandparent visitation statutes to authorize great-grandparents to petition for visitation, and thus the court did not err by concluding Ed and Yvonne lacked legal standing to seek visitation. Accordingly, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

Ashley C. and Zachary H., whose marriage was dissolved in 2014, have two children together: H.H. and J.H. (together, the great-grandchildren). Ashley and H.H. lived with Ed and Yvonne for approximately three years, *903from about August 2009 to July 2013. Once J.H. was born in 2010, he also lived with Ed and Yvonne until July 2013. During this time, Ed and Yvonne helped care for the great-grandchildren. After Ashley and the great-grandchildren moved out of Ed and Yvonne's house, Ed and Yvonne would periodically visit them.

In September 2013, Ashley petitioned for dissolution of her and Zachary's marriage, and their marital status was terminated in March 2014. The dissolution judgment awarded Ashley sole legal and physical custody of the great-grandchildren and awarded Zachary reasonable visitation.

In March 2015, Ashley requested domestic violence restraining orders against Zachary in response to an incident where Zachary threatened her. Later that month, the court awarded Ashley a restraining order against Zachary including a child custody and visitation order granting Ashley legal and physical custody of the great-grandchildren and terminating Zachary's visitation. Ed and Yvonne's visits with the great-grandchildren ended about this time.

In December 2015, Ed and Yvonne filed a request for an order modifying visitation and a petition for independent great-grandparent visitation pursuant to sections 3100, 3102, 3103, and 3104. They asserted that despite numerous attempts to contact Ashley, she had ignored their calls and messages, and that as a consequence, they had not contacted their great-grandchildren since March 2015. Ed and Yvonne argued that because of their long-standing and substantial relationship with the great-grandchildren, visitation and continued family contact was in the great-grandchildren's best interest. Zachary consented to and joined in Ed and Yvonne's visitation petition. At the same time, Ed and Yvonne obtained an order shortening time to seek *915mandatory joinder as indispensable parties.

Ashley opposed the motion and the request for joinder. She argued her ongoing contact with Ed and Yvonne was hindered once Zachary moved into Ed and Yvonne's home because of the restraining order against Zachary. However, she asserted she had not deterred Ed and Yvonne from contacting the great-grandchildren, and except for one instance, they had not attempted to visit them since April 2015. She argued that an order joining Ed and Yvonne would be detrimental to the great-grandchildren's welfare because they associate Ed and Yvonne with Zachary, who terrifies them, and therefore visitation may cause the great-grandchildren fear and anxiety. She asserted that Ed and Yvonne minimized Zachary's drug and behavioral problems, and thus she could not trust them to protect the great-grandchildren from him. Ashley also asserted that Ed and Yvonne lacked standing to be joined because they were not grandparents, and the court had no subject matter jurisdiction to entertain their request.

*904In reply, Ed and Yvonne argued they had standing to seek visitation under California law providing for nonparent visitation. They additionally contended the court had discretion under section 3100 to grant visitation to nonparents who have an interest in the child's welfare; they had standing to seek visitation under California Rules of Court, rule 5.24(c)(1),(2) and (e)(1)(A),(B) given Zachary's consent to their visitation request; and they could seek visitation as de facto parents.

In March 2016, the court heard Ed and Yvonne's requests for joinder and visitation. During the hearing, the court observed that "[j]oinder is statutory" and while it had exhaustively reviewed case authority, it found no authority for joinder of great-grandparents. The court further noted that although there are grandparent, stepparent, and sibling joinders, "[t]here are not, by statute, great-grandparent joinders, and once an objection is lodged, the court cannot join because there is no statutory right to join." After hearing argument, the court denied Ed and Yvonne's joinder motion: "The court finds that this is a statutory scheme, and the great-grandparents do not have standing and will not be joined." Its written order provides: "The Court summarily denies the request of proposed Claimants, Ed and Yvonne [H.], to join as parties to this case for grandparent visitation based upon lack of subject matter jurisdiction because of lack of standing by the great-grandparents."

This appeal followed.

DISCUSSION

I. Standards of Review

We generally review custody and visitation orders for abuse of discretion. ( Montenegro v. Diaz (2001) 26 Cal.4th 249, 255, 109 Cal.Rptr.2d 575, 27 P.3d 289 ; In re Marriage of Burgess (1996) 13 Cal.4th 25, 32, 51 Cal.Rptr.2d 444, 913 P.2d 473.) "Under this test, we must uphold the trial court 'ruling if it is correct on any basis, regardless of whether such basis was actually invoked.' " ( Diaz , at p. 255, 109 Cal.Rptr.2d 575,

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Cite This Page — Counsel Stack

Bluebook (online)
221 Cal. Rptr. 3d 911, 14 Cal. App. 5th 899, 2017 WL 3634152, 2017 Cal. App. LEXIS 735, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ed-h-v-ashley-c-calctapp5d-2017.