Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County, Super. Ct. No. SBFSS083715, Michael Gassner, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.)
Tetley Law Offices and Frank O. Tetley for Plaintiff and Appellant.
No appearance for Defendant and Respondent.
OPINION
MILLER, J.
Appellant Georgine McKee (grandmother) filed an order to show cause (OSC) seeking an order for grandparent visitation, pursuant to Family Code section 3102. The trial court granted the motion of respondent Myriam Mourani (mother) for summary judgment on the issue. Because mother is a fit parent who is willing to provide reasonable visitation, section 3102 is unconstitutional as applied in this case. Based on the undisputed facts, the trial court properly granted mother’s motion for summary judgment. We affirm the court’s ruling denying court-ordered visitation.
All further statutory references are to the Family Code unless otherwise indicated.
FACTUAL AND PROCEDURAL HISTORY
Mother was married to Victor Brzezinski (father). The parties to the marriage filed for dissolution of the marriage in 1999. Mother and father had joint legal custody of the minor child of the marriage, and shared custody on a 50/50 basis. Unfortunately, father died in 2004. Thereafter, the child resided exclusively with mother.
In December 2004, grandmother filed an OSC for the court to order grandparent visitation pursuant to section 3102. Section 3102 provides in relevant part: “(a) If either parent of an unemancipated minor child is deceased, the children, siblings, parents, and grandparents of the deceased parent may be granted reasonable visitation with the child during the child’s minority upon a finding that the visitation would be in the best interest of the minor child.
“(b) In granting visitation pursuant to this section to a person other than a grandparent of the child, the court shall consider the amount of personal contact between the person and the child before the application for the visitation order.”
Mother responded by moving for summary judgment. As undisputed material facts, mother asserted that she was a fit parent, and that she already allowed reasonable contact between grandmother and the minor child.
Grandmother stipulated that mother was a fit parent. She objected, however, that mother “refuse[d] to allow [grandmother to] spend ‘quality time’ with [the minor] outside [mother’s] presence.” That is, mother lived in California, grandmother lived in New Jersey, and mother did not agree to send the child (eight years old at the time of hearing) unaccompanied to New Jersey. Mother had no objections to out-of-state visitation as long as mother was present. There had never been any difficulties arranging short-notice visitation in California. Mother had also traveled to Massachusetts, and arranged visitation with grandmother in New Jersey during that trip. The child also telephoned grandmother approximately once a week, and mother and grandmother exchanged photos, e-mails and other communications without problems.
Under circumstances in which the surviving, custodial parent is a fit parent and agrees to reasonable visitation, the trial court, relying on several cases, found section 3102 unconstitutional as applied to mother here. Accordingly, the trial court denied grandmother’s OSC, effectively giving summary judgment on the issue to mother.
Grandmother now appeals.
DISCUSSION
A. Standard of Review
We review a grant of summary judgment de novo. (Prilliman v. United Air Lines, Inc. (1997) 53 Cal.App.4th 935, 951.) In addition, “‘the interpretation and application of a statutory scheme to an undisputed set of facts is a question of law [citation] which is subject to de novo review on appeal.’” (Bodell Construction Co. v. Trustees of Cal. State University (1998) 62 Cal.App.4th 1508, 1515.)
B. Section 3102 Was Unconstitutional as Applied
The issue tendered by grandmother’s OSC was whether, under section 3102, the court should order visitation for grandmother, as the grandparent of a child whose parent was deceased.
Mother’s moving papers asserted both that she was a fit parent, and that she permitted reasonable visitation with grandmother; mother’s concern was sending the child out of state unless mother was also present.
Grandmother stipulated that mother was a fit parent. She also did not disagree with mother’s evidence of past allowed contact and visitation. Mother’s offer of proof at the hearing showed that father died in April 2004. In October 2004, mother and the child traveled to Massachusetts; while there, mother contacted grandmother and arranged for visitation. In August 2005, grandmother notified mother that she would be coming to California and would like to visit with the child. Mother accommodated the visit. Grandmother had a period of illness during which no visitation took place. In December 2005, grandmother again traveled to California. Mother permitted visitation between December 31, 2005, and January 8, 2006. The child and grandmother had telephone contact each week, and mother would send photographs to grandmother and kept grandmother advised of the child’s activities. Among other things, mother made sure that the child spoke to grandmother on the anniversary of father’s death. There had never been a problem for mother to arrange visitation in California, even on rather short notice. The visitation in California included overnight stays with grandmother. Grandmother did not disagree with any of these statements.
In Troxel v. Granville (2000) 530 U.S. 57 [120 S.Ct. 2054, 147 L.Ed.2d 49], the United States Supreme Court held that a Washington statute authorizing visitation by a nonparent with a child was unconstitutional as applied to the circumstances of that case. There, the father had died and his parents sought an order for visitation pursuant to the Washington statute. The mother did not oppose visitation, but disagreed as to the amount. The trial court ordered visitation. The Supreme Court reversed; the Washington statute infringed on the fundamental right of a parent to make decisions about the custody, care and control of his or her child. (Id. at p. 64-66 [102 S.Ct. at p. 2060, 147 L.Ed.2d at pp. 55-57].) “[T]here is a presumption that fit parents act in the best interests of their children.... [¶]... [¶] Accordingly, so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent’s children.” (Id. at pp. 68-69 [120 S.Ct. at p. 2061, 147 L.Ed.2d at p. 58].)
Following the lead of Troxel, California courts have also found section 3102 unconstitutional as applied, in cases in which the parent is fit, and there is no suggestion that the parent opposes reasonable visitation.
In Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848, the father was a fit parent, he agreed that visitation with the maternal grandparents was in the child’s best interest, but he simply wanted to have a more flexible arrangement than a court-ordered visitation schedule. The Court of Appeal concluded that, in light of the father’s fitness and his agreement that grandparent visitation should not be cut off completely, the interposition of a court order unduly interfered with his fundamental constitutional rights.
In Punsly v. Ho (2001) 87 Cal.App.4th 1099, the parents of the minor child were divorced. The parents shared custody, and the paternal grandparents were able to visit with the child. The father died and custody was with the mother. For some time after the father’s death, the mother facilitated visitation with the paternal grandparents, but a dispute later arose about visitation. The grandparents sought an order under section 3102. The court ordered grandparent visitation. The Court of Appeal reversed, as Troxel had been decided shortly after the order had been entered. The Court of Appeal noted that the grandparents had conceded that the mother was a fit parent. The trial court should therefore have applied the presumption that the mother’s decisions about visitation were in the best interest of the minor child. (Punsly, at p. 1109.) In addition, because the mother was willing to voluntarily schedule visitation, court intervention interfered with her fundamental constitutional rights. (Id. at pp. 1110-1111.)
In Herbst v. Swann (2002) 102 Cal.App.4th 813, a half-sibling sought visitation. The sibling’s petition did not, however, allege any compelling facts to overcome the presumption that the surviving parent was acting with the best interests of the minor child in mind. (Id. at p. 820.)
Zasueta v. Zasueta (2002) 102 Cal.App.4th 1242 also involved grandparent visitation. Because of certain acts of the grandparents, and some questionable behavior she witnessed at the grandparents’ home, the surviving mother was opposed at present to any visitation with the grandparents. The trial court made a finding that the mother was unfit, based solely on the mother’s reluctance to allow visitation, but otherwise had no reason to find the mother unfit. The Court of Appeal reversed, holding that the trial court had improperly substituted its own judgment instead of applying proper deference to the decision of a fit parent. The court did not hold that the application of section 3102 was necessarily unconstitutional on the facts, but remanded for a further hearing, at which the grandparents would be able to produce evidence to rebut the presumption that the parent was acting in the best interest of the child. (Zasueta, at p. 1255.)
Here, grandmother points to Fenn v. Sherriff (2003) 109 Cal.App.4th 1466 for the proposition that, even if a parent is fit, ordering visitation over the parent’s objection is not necessarily violative of the parent’s due process rights to care, custody and control over a child. (Id. at pp. 1478-1479.) There, the matter proceeded on summary judgment; the father took the view that the objection to visitation of a fit parent was a sufficient basis to avoid application of section 3102 as unconstitutional. The Court of Appeal disagreed. The decision of a fit parent was entitled to special deference, but it was not insulated from all judicial review. (Fenn, at pp. 1478-1479.) Some evidence had been presented in opposition to the motion for summary judgment that the father was not permitting any meaningful visitation with the grandparents. (Id. at p. 1484.)
The matter here is distinguishable from Fenn. The evidence was undisputed that mother is a fit parent. The evidence is also uncontradicted that mother provided meaningful contact and visitation between the child and grandmother. Grandmother’s fears that this might change in the future are speculative and unfounded, and do not provide an evidentiary basis upon which she could overcome the presumption that mother is acting in the best interest of the minor child.
Mother’s showing was sufficient to justify judgment in her favor, and nothing in grandmother’s opposition overcame the presumption that mother, as a fit parent, had the child’s best interests in mind.
DISPOSITION
The order denying grandmother’s petition for visitation is affirmed. Costs on appeal are awarded to mother.
We concur: RICHLI, Acting P. J. GAUT, J.