In re Marriage of Harris

• Citation: 17 Cal.Rptr.3d 842,96 P.3d 141,34 Cal.4th 210
• Decision Date: 23 August 2004
• Docket Number: No. S101836.,S101836.
• Court: United States State Supreme Court (California)
• Parties: In re the MARRIAGE OF Karen and Charles Erik HARRIS. Karen Butler, Appellant, v. Charles Erik Harris et al., Respondents.

17 Cal.Rptr.3d 842

96 P.3d 141

34 Cal.4th 210

In re the MARRIAGE OF Karen and Charles Erik HARRIS.

Karen Butler, Appellant, v. Charles Erik Harris et al., Respondents.

No. S101836.

Supreme Court of California.

August 23, 2004.

Rehearing Denied October 20, 2004.¹

Family Law Appellate Associates, Law Offices of Jeffrey W. Doeringer and Jeffrey W. Doeringer, Huntington Beach, for Appellant.

Karen A. Wyle; Julie E. Mumma, Sacramento; Guralnick & Gilliland, and Anne L. Rauch, San Diego, for the Coalition for Restoration of Parental Rights as Amicus Curiae on behalf of Appellant.

Martha Matthews, Mark D. Rosenbaum, Los Angeles; Charles A. Bird, San Diego, Jordan C. Budd; Joan H. Hollinger; Shannon Minter; and Shannan Wilber for ACLU Foundation of Southern California, ACLU Foundation of San Diego and Imperial Counties, Child Advocacy Program Law School — Boalt Hall, National Center for Lesbian Rights and Youth Law Center as Amici Curiae on behalf of Appellant.

Law Office of Paul W. Leehey and Paul W. Leehey, Fallbrook, for Respondents.

William Wesley Patton for Whittier Law School Legal Policy Clinic as Amicus Curiae on behalf of Respondents.

David Borges; Law Offices of Gollub & Golsan, Lorraine Gollub; Cooper-Gordon, Freida Gordon; Dawn Gray, Grass Valley; Stephen Temko; Woodruff, O'Hair & Posner and D. Thomas Woodruff for the Association of Certified Family Law Specialists as Amicus Curiae on behalf of Respondents.

Myron Dean Quon, Patricia M. Logue and Jon W. Davidson for Lambda Legal Defense and Education Fund, Inc., as Amicus Curiae on behalf of Respondents.

Lawrence E. Fluharty for the Los Angeles Chapter of the National Association of Counsel for Children as Amicus Curiae.

MORENO, J.

The superior court granted extensive visitation rights to the paternal grandparents of a five-year-old girl with the approval of the father but over the objection of the mother, who has sole custody of the child. Applying the United States Supreme Court's decision in Troxel v. Granville (2000) 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49, the Court of Appeal reversed, holding that the visitation order violated the mother's constitutional liberty interest in the custody, care, and control of her child.

For the reasons that follow, we conclude that Family Code section 3104 controls in this case and that the statute is constitutional, both on its face and as applied. Because the mother had sole custody of the child and objected to grandparent visitation, Family Code section 3104, subdivision (f), imposed a rebuttable presumption affecting the burden of proof that grandparent visitation was not in the child's best interest. The superior court did not utilize this presumption. Accordingly, we remand the case to permit the superior court to reconsider its order permitting grandparent visitation in light of the statutory presumption that grandparent visitation is not in the best interest of the child.

I. Facts

Appellant Karen Butler (the mother) married respondent Charles Harris (the father) on January 12, 1994. They separated on October 16, 1994, 10 days before the birth of their daughter, Emily. The mother filed for dissolution of marriage three months later, on January 18, 1995.

Clinical Psychologist Daniel O'Roarty, Ph.D., was appointed by the superior court to conduct a psychological assessment of the parties and reported that the mother and father met in San Diego in October, 1993, when the mother was a helicopter pilot in the Navy. They began living together two weeks after they met, later moving to a boat in the Chula Vista Marina. As noted above, they married in January, 1994, three months after they met.

The mother claimed that during the marriage the father was psychologically and physically abusive to her. He hit her and called her names. On one occasion, he pushed her overboard and then tried to run her over with their dinghy as she swam to shore. During an altercation when she was six months pregnant, he kicked her in the stomach.

The father denied these accusations, but admitted using and selling marijuana and, on one occasion, using crystal methamphetamine, and admitted striking and biting the mother on several occasions that he described as mutually combative.

As noted above, the mother left the father shortly before Emily was born and stayed in hotels and with a friend. She lived with the paternal grandparents, respondents Leanne and Charles Harris, for more than a week after Emily was born and then moved into a shelter for battered women. She took Emily to visit the father regularly.

On July 21, 1995, the superior court, pursuant to stipulation of the parties, bifurcated the issues of child custody and visitation and entered judgment dissolving the marriage and granting the mother sole legal and physical custody of Emily, following the recommendation of Dr. O'Roarty. The judgment also provided that the mother could move to Maryland with Emily on or after August 5, 1995. The father was granted supervised visitation contingent on his undergoing psychotherapy, drug testing and attending Narcotics Anonymous meetings. A schedule was established for visitation pending the mother's move to Maryland, which permitted the paternal grandparents to be present. Also by stipulation, the paternal grandparents were joined as parties to the action. They agreed not to interfere with the mother's scheduled move to Maryland.

On August 2, 1995, the paternal grandparents filed a motion for visitation, alleging that the mother would not permit visitation absent a court order. The paternal grandparents asked that Emily spend 10 days at their home every other month. The mother's response noted that Emily was 11 months old and was still nursing. She asked that all visitation take place in Maryland where she was living with her parents and be supervised until the paternal grandparents "get therapy on the issue of abuse." The mother related that the father had been abused by the paternal grandfather, but the paternal grandparents denied this accusation. Family court services counselor Sandra Boyles conducted a mediation session in which the mother participated by telephone and the parties agreed that the paternal grandparents would visit Emily in Maryland for approximately 10 days, six times a year, with no overnight visits. Following a hearing, the court granted the paternal grandparents visitation with Emily in Maryland with no overnight visits and without the father being present as follows: four visits per year for up to seven days each in 1996, six visits per year for up to seven days each in 1997, and six visits per year for up to 10 days each in 1998. The court ordered the grandparents to attend four counseling sessions to address the issue of abuse.

On April 29, 1996, the mother filed a motion to terminate the paternal grandparents' visitation rights, alleging that their visits in January and April of 1996, "were extremely hostile and filled with conflict" and thus had been detrimental to Emily. The mother declared that Emily had nightmares after the paternal grandparents' last visit, cried during her nap times, and clung to the mother "for days after the visits," all of which behavior was unusual for her. The paternal grandparents filed a responsive declaration in which they agreed that the visits had been hostile, but placed the blame on the mother. Following a hearing, the court on October 30, 1996, denied the mother's motion to terminate the paternal grandparents' visitation rights and modified visitation to a maximum of four visits per year for a maximum of seven days each time, to continue until further order of the court.

On November 1, 1996, the paternal grandparents provided the mother with 30 days' notice of their intention to visit Emily on December 1, 1996, but received no response. They traveled to the mother's residence in Maryland and discovered that the mother and Emily had moved. The paternal grandparents hired several private investigators who, many months later, located the mother and the maternal grandparents in Utah. The mother had married Mark Butler, who had six children. The paternal grandparents contacted the mother and she agreed to visitation, which took place in mid-January 1998.

On January 20, 1998, the court found the mother in contempt for failing to comply with the court's orders that she keep the paternal grandparents informed of her current address and permit the scheduled visitation. The court placed the mother on probation for two years. On July 21, 1998, the mother was ordered to pay $7,555 in attorney fees and expenses to the paternal grandparents, and the visitation order was modified to permit visitation within a 50-mile radius of the mother's home in Utah.

The paternal grandparents had week-long visits with Emily in Utah in April, July, and October of 1998. The paternal grandparents asked the mother if they could bring Emily, then 4 years old, to California on their next visit, but the Mother declined, saying she was "not comfortable sending Emily to California." In January of 1999, the paternal grandparents again visited Emily in Utah for seven days. The mother did not permit overnight visits.

On February 9, 1999, the paternal grandparents filed a motion to modify the visitation order to permit them to bring Emily to California for visitation and to permit overnight visits in Utah. On February 24, 1999, the father joined the paternal grandparents' request for visitation in California so that the father could visit Emily while she was in the care of his parents.

On March 17, 1999, pursuant to court order, the mother, the father, and the paternal grandparents met with family court services counselor Sandra Boyles. The father requested unsupervised visits with Emily or, at least, visits at his parents' home. The father became so agitated and hostile during the conference that Boyles asked him to leave. Boyles recommended that the father be permitted visitation only...