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The California Fourth Appellate District ruled this week that a surviving parent cannot use spite as a "Big Bertha" in a grandparent visitation rights dispute.
While the landmark 2000 case Troxel v. Granville commands a presumption that a surviving parent's objection to grandparent visitation rights is in the best interest of the children, the appellate court this week refused to permit a parent to use the Troxel presumption in his personal war with the grandparent.
Melville Diedjomahor (the father) and Kristen Hoag (the mother) were married in 2005. They lived with Kristen's mother, Shannon Hoag (the grandmother). In 2006, their first daughter was born.
In 2007, they separated. The father went to live in Desert Hot Springs; the grandmother, the mother, and the daughter all remained in La Habra.
In April 2008, the mother and father reconciled; the mother, daughter, and grandmother moved into the father's apartment in Desert Hot Springs. The couple's second daughter was born later in 2008.
In February 2009, the mother filed for divorce. According to the grandmother, the mother moved out and went to live with her oldest brother (the uncle), accompanied by the children and the grandmother.
According to the father, the mother did not move out; she merely went to the uncle's house for a weekend visit.
In March 2009, during this stay at the uncle's house, the mother died suddenly. In the immediate aftermath of her death, the children remained with the grandmother, at the uncle's house. The father visited them every couple of days.
The grandmother filed a petition for guardianship, arguing that the father was an unfit parent. The petition was subsequently dismissed.
After the guardianship case was dismissed, the father attempted to deny grandparent visitation rights to retaliate for the grandmother's guardianship petition.
The court, finding that the father's arguments for denying visitation were neither reasonable nor credible, affirmed the trial court order granting the grandmother's petition for visitation rights.
Troxel does not leave all decision-making power with regard to grandparent visitation rights in the hands of the surviving parent. If you represent a grandparent in a similar case, you may be able to win grandparents visitation rights by demonstrating that the surviving parent has not offered a reasonable objection to grandparent visitation.