NON-PARENT VISITATION

When family relationships become complicated by divorce or the death of a parent, there are sometimes disagreements about who should be allowed to visit with the minor children involved. A case in the California Court of Appeals, Herbst v. Swan, delineates some of the issues involved in deciding the rights of non-parents to visit minor children.

WHO GETS TO DECIDE?

California's Family Code states that parents get to decide who visits their children, as parents alone are entitled to raise their children in any manner they see fit as long as their decisions are not harmful to the children. When a non-parent, such as a grandparent, a half-sibling or a former stepparent submits a request for visitation privileges with a minor child, the Court makes two assumptions:

1. The parent of the child is acting in the child's best interest
2. The parent objects to the visitation because visitation with the petitioner is not in the child's best interest

The Court assumes that a parent's objection to visitation is the reason the case is in court, and if there were no grounds for objection, the parties would work out a schedule of visitation without the Court's intervention.

THE TROXEL PRECEDENT

When an issue of non-parent visitation comes to the attention of the Family Court, many judges rely on the landmark United States Supreme Court case Troxel v. Granville when making a determination. In this case, the parents of a deceased father petitioned the court for the right to visit their son's daughters. The petition was granted until the family's circumstances changed. Within a year of the Washington Supreme Court's decision, Granville remarried and her husband adopted the girls. At that point the decision was overturned, stating that non-parents have no rights in terms of visitation if the parents of the children do not approve of it.

In the case of Herbst v. Swan, the petitioner was an adult half-sibling of a minor child. The two shared a father, who was deceased. While the petitioner held that she had an ongoing and significant relationship with her half-sibling, the minor child's mother disagreed. The court, relying on the Troxel precedent, chose to deny the petition for visitation based on how often the two saw each other prior to the petition - which, according to the mother's testimony, was rarely.

The role of the Family Court is to protect the best interest of the child. An experienced San Diego area family law attorney can assist you in protecting your visitation rights and upholding the best interest of your child in all matters of divorce, custody and visitation.