State legislation is often reactive, suffering from the belief that no problem can possibly be made worse by creating a “remedy” for it in the judicial system. A few years back, a number of grandparents anecdotally and adversely affected by a child’s divorce mounted an effective publicity campaign calling for new laws, destined to pass because of the absence of an organized counter-lobby of citizens wishing to preserve their future parenting decisions from judicial micromanagement (Oct. 21, 2002). Thus, California Family Code ?? 3103-3104 permit grandparents to litigate visitation rights if a child’s parents divorce, even on the objections of both parents. It also permits the litigation of collateral issues arising from the existence of grandparents’ visitation rights, including using such rights as a “factor” to order a change of residence of the child (? 3103(f)) or providing for the resolution of additional child support issues relating to the grandparents’ visits (? 3103(g)). The possibility of such litigation is not an insubstantial bargaining chip, given that other California family law permits the court to order one spouse to pay the litigation expenses of both spouses. The law is in the news because one such litigation made it to the California Supreme Court, which upheld the constitutionality of the law in a 4-3 decision in In re Marriage of Harris, distinguishing it from a broader Washington state law struck down by the U.S. Supreme Court in 2000 in Troxel v. Granville. (Maura Dolan, “Court Backs Rights of Grandparents”, L.A. Times, Aug. 24; Bob Egelko, “Custody ruling backs grandparents’ rights”, San Francisco Chronicle, Aug. 24; David Watson, “Statutes on Grandparent Visitation Pass Constitutional Muster”, Metropolitan News-Enterprise, Aug. 24) (via Bashman).

Filed under: divorce, family law, Washington state