Lisa D. v. Carol F.

151 Cal. App. 3d 391, 198 Cal. Rptr. 801, 1984 Cal. App. LEXIS 1559

• Court: California Court of Appeal
• Decided: January 25, 1984
• Docket: Civ. 28281
• Status: Published

Opinions

Opinion

WIENER, J.

We confront here the issue of the right of grandparent visitation of a child where the parents and maternal grandparents have less than a congenial relationship. We conclude that in spite of the continuing internecine conflict substantial evidence supports the court’s order permitting grandparent visitation under Civil Code section 4601.¹

Factual and Procedural Background

Plaintiff Lisa D. is the natural mother and Thomas D. is the adoptive father of six-year-old Robert. The D.s were married on May 5, 1980. The defendants Carol F. and Raymond F. are the maternal grandparents of Robert (grandparents). On September 18, 1978, Lisa was granted care, custody and control of Robert in an Illinois judgment of dissolution. Before that date she had left Robert in the temporary care of her parents. After her marriage to Thomas, Lisa sought the return of Robert. When her parents refused, Lisa petitioned this court for a writ which was set for hearing with a return date of July 15, 1980. Pending that hearing the grandparents filed a petition for adoption and a petition for freedom from parental custody and control alleging the minor had been abandoned (§ 232). Lisa opposed these petitions. On August 13, 1980, the parties, through counsel, orally stipulated to provide physical possession of Robert in his grandparents until November 15, 1980, when custody was to be transferred to Lisa subject to visitation rights of the grandparents.²

About two years later Lisa, joined by her husband, moved to “vacate” the stipulated order. Declarations accompanying her motion explained that the order substantially interfered with the rights to parent the child. The grandparents opposed the motion and requested the court order a conciliation court investigation and report regarding the custody and visitation. After receiving the oral report of the family services division counselor (Dean Metzner) the court ordered:

“B. The Court further finds that it is in the best interest of the child to continue a visitation schedule with Respondents/Grandparents Carol and Raymond F.

“The court finds that is in the best interest of the minor child, Robert, to continue the visitation between the grandparents and the child on the following terms and conditions:

“1. The Respondent/Grandparents shall have the child one weekend per month from 6:00 p.m. on Friday to 6:00 p.m. on Sunday. The weekend shall be designated by the Petitioner/Mother, and she shall inform the Respondent/ Grandparents on or before the 20th day of the preceding month as to the weekend they shall have the visitation.

“2. All parties to this action, which include the parents and grandparents shall participate in psychological counseling to work out further visitation problems, and the parents shall bring the child to such counseling as is deemed necessary by the psychologist. They shall use a mutually agreed upon psychologist and Respondents shall pay the initial $500.00 for the counseling of the parties. All charges thereafter shall be shared equally between the Petitioners and the Respondents.” The parents appeal this order.

I

The parents contend they have encountered substantial difficulties with what they consider interference by the grandparents with the parenting of their son. Specifically, they point to the grandparents’ past refusal to cooperate in toilet training and in the weaning process, the grandparents’ refusal to return Robert from visitation when ill and causing treatment by a doctor not knowledgeable concerning their son’s condition, the grandparents’ spoiling of Robert with resultant difficulties in raising him, the grandparent’s provision of dental treatment without permission when the grandparents knew the child had his own dentist, the grandparents’ continuing coldness and hostility to the parents which rendered the parties’ ability to communicate with each other impossible, thus constituting a serious impediment to plaintiffs’ ability to parent. When the parents perceived the interference of the grandparents to be too great, the present proceedings to modify the previous order were commenced.

Before the hearing the parties met with counselor Metzner. At the hearing he recommended counseling not because of the psychopathology of the child or any of the parties but counseling “focusing on the needs of the child, which is one of the things that has been at issue over the past couple of years [which] would be certainly helpful in this case.” Metzner confirmed the existence of conflict between the parents and grandparents as to how the child should be raised.

Before the effective date of the Family Law Act, no statute provided for visitation rights in anyone other than the father and mother except for the provision in section 197.5 which permits visitation orders in favor of grandparents in cases where the grandparents’ child was deceased. That provision is still effective but not applicable here for both parents are living. In earlier California cases orders have been made granting grandparents rights of visitation and were upheld. In these cases, visitation orders were granted upon stipulations of the parents. (See Bookstein v. Bookstein (1970) 7 Cal.App.3d 219 [86 Cal.Rptr. 495]; Benner v. Benner (1952) 113 Cal.App.2d 531 [248 P.2d 425]; Kentera v. Kentera (1944) 66 Cal.App.2d 373 [152 P.2d 238].) Perry v. Superior Court (1980) 108 Cal.App.3d 480, 482 [166 Cal.Rptr. 583], construed section 4601 “to permit the court to award reasonable visitation rights to a nonparent only if in the proceeding before it the court otherwise has jurisdiction over the issue of custody.” The need for jurisdiction over the custody issue was emphasized by this court in In re Marriage of Jenkens (1981) 116 Cal.App.3d 767, 774 [172 Cal.Rptr. 331].

The right to parent can only give way upon a clear and convincing showing of parental unfitness and detriment to the child. However, we are not here concerned with an award of custody but simply a temporary right of visitation. The right of visitation while not being equivalent of full custody is a limited form of custody during the time the right is being exercised. (See Perry v. Superior Court, supra, 108 Cal.App.3d at p. 483.) Against this conceded intrusion on the right to parent must be measured the section 4601 grant of right of reasonable visitation where the interests and the welfare of the child are to be benefited.

The parents argue that In re Marriage of Jenkens, supra, 116 Cal.App.3d 767 requires and authorizes the denial of grandparent visitation. However, Jenkens was determined as a jurisdictional question as was Perry. In Jenkens, the trial court was without jurisdiction, in a proceeding for modification, to adjudicate the visitation rights of the grandparents where a State of Washington interlocutory dissolution decree had awarded the child’s custody to the mother and the modification proceeding had been instituted after the death of the child’s father. The grandparents had no standing to contest the surviving parent’s right to exclusive custody of the child, had no judicially recognized basis from which to demand visitation, absent their institution of a distinct custody proceeding in which they need prove the mother’s unfitness. Here, however, the question of visitation rights originated in a custody proceeding involving the grandparents, not a dissolution proceeding. The jurisdictional question is not present.

Deciding jurisdiction does not conclude this matter. The principal issue before us is whether there is sufficient evidence to support the order. Even in child custody matters appellate review is governed by the substantial evidence rule. (See Guardianship of Phillip B. (1983) 139 Cal.App.3d 407, 413-414 [188 Cal.Rptr. 781].) Trial courts have very extensive discretion in determining what will be in the best interests of a child and “ ‘. . . the conclusion arrived at by . . . courts in such cases will not be set aside unless the record discloses a clear abuse of discretion. ’ [Citation.] ... It is the province of the trial court to judge the effect and value of the evidence, determine the credibility of witnesses and resolve the conflicts in the evidence or in the reasonable inferences to be drawn from the evidence. When the evidence is conflicting, the ‘appellate court will indulge all intendments and reasonable inferences which favor sustaining the finding of the trier of fact and will not disturb that finding when there is substantial evidence in the record in support thereof [citation].’ [Citations.]” (Bookstein v. Bookstein, supra, 7 Cal.App.3d at p. 224.)

Here, the court found there was an advantage in having four parents rather than just two. The court decided it would be in the best interest of the child to maintain the grandparent relationship. This finding is supported by the recommendation of the counselor who concluded after interviewing the parties that continuing grandparent contact would be in Robert’s best interest. Except for the declarations by the parents, the record is devoid of contrary evidence. The events to which the parents refer such as cooperation in toilet training and the weaning process have long since passed. The court’s present order satisfactorily addresses the grandparents’ alleged interference with Robert’s medical and dental treatment.

While this record reflects a sad story of intrafamily discord with continuing hostilities we cannot preempt the trial court’s factfinding responsibility. Although the adversary forum of the trial court is admittedly an unsatisfactory arena to resolve the sensitive issues involving child custody, the court’s use of the family conciliation court for a mediation proceeding was consistent with its efforts to reach a Solomon-like decision. There is no suggestion the parents were prevented from presenting relevant evidence from any source on the issue of what they believed to be in the best interests of their child. As a tactical matter the parents’ able trial counsel elected to restrict his advocacy to the legal issues supporting his clients’ position. Thus, on this limited record absent a factual basis, we cannot say the conflict here precludes grandparent visitation.

Grandparent visitation is beneficial for a child’s development allowing for the establishment and later maintenance of an important familial relationship extending beyond childhood. Conceptually, depriving a child from his or her grandparents sets the child apart from his peers and impedes rapport between “natural” family. Unless family ties are maintained, later attempts at rekindling the family flame become awkward if not impossible.

This record reflects the court’s appreciation of the practical problems and theoretical benefits of grandparent visitation. Sensitive to the issues, the court here weighed and considered the evidence. We cannot say the result reached was a clear abuse of the court’s discretion and accordingly affirm that part of the court’s order continuing grandparent visitation.

II

We have some discomfort with the order for psychological counseling, however. We use the word “discomfort” because the parents’ counsel failed to object to that order and at trial appeared to acquiesce to the order for counseling agreeing to submit the name of a mutually satisfactory counselor. Nonetheless, the order was made without any showing of unfairness, inability or unwillingness by the plaintiffs to perform their parental duties. In Jenkens, the trial court had compelled the mother to undergo counseling. There we said: “In all the cases, the requisite finding is of parental unfitness. That factor is absent here. On what authority, then, may the court order counseling and grant a third party visitation? None is cited; we know of none.” (In re Marriage of Jenkens, supra, 116 Cal.App.3d at p. 775.) As is pointed out in In re Marriage of Halpern (1982) 133 Cal.App.3d 297, 316 [184 Cal.Rptr. 740], there being no issue as to psychological condition of a parent the trial court was without power to order such person to submit to a psychiatric examination. While counseling rather than a psychiatric examination was the objective of this particular order, the most this or any other court may do is express the thought that psychological counseling of this mother and these grandparents might have a most valuable and beneficial effect of reducing intrafamily tensions. But such counseling cannot be forced, no authority exists for compelling it. Accordingly, the order must be modified to delete the requirement for psychological counseling.

Disposition

The order is modified to delete the requirement of psychological counseling. Except as so modified, the order is affirmed.

Work, J., concurred.

1 All statutory references are to the Civil Code.

Section 4601 provides: “Reasonable visitation rights shall be awarded to a parent unless it is shown that such visitation would be detrimental to the best interests of the child. In the discretion of the court, reasonable visitation rights may be granted to any other person having interest in the welfare of the child. ”

2 The order for visitation provided in pertinent part as follows: “Commencing Thursday, June 11, 1981, and continuing until further order of . . . court, visitation with the [grandparents] once each and every month from 7:00 p.m. on the Second Thursday of the month until 7:00 p.m. on the following Sunday. [1] . . . [Grandparents] shall also have the right to a summer visitation . . . for a period of two (2) weeks if, at the time of the visitation, both parties are residing within the state of California, and for a period of one (1) month if either party is residing outside of the state.”