The facts in this published opinion out of Riverside County are pretty clear, so I will let the opinion do the talking.
Melville Diedjomahor (the father) and Kristen Hoag (the mother) were married in 2005. They lived with Kristen’s mother, Shannon Hoag (the grandmother), at her apartment in La Habra. In 2006, their first daughter was born. Sometime 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, however, they reconciled. Thus, the mother and the daughter moved into the father’s apartment in Desert Hot Springs; the grandmother moved in along with them. Later in 2008, the couple’s second daughter was born.
In sum, then, the grandmother lived with both of the children from the time they were born. She helped to care for them. She testified that she was “like a third parent . . . .”
On February 25, 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, however, the mother did not move out; she merely went to the uncle’s house for a weekend visit.
On March 29, 2009, during this stay at the uncle’s house, the mother died suddenly as a result of previously undiagnosed epilepsy. 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 initiated a guardianship proceeding seeking custody of the children on the ground that the father was unfit. That guardianship was eventually dismissed, but not before grandmother was granted visitation with the children, including alternating weekends and every Wednesday evening. She could also telephone the children daily. Grandmother then pursued this grandparent visitation action, seeking to have the schedule from the guardianship case adopted as a permanent schedule. Father objected, and a trial was conducted to determine what visitation rights, if any, the grandmother should have.
The father conceded that the children loved the grandmother. He also agreed that “she should be allowed to spend time with them . . . .” He testified that he would allow visitation voluntarily. However, he expressed some opposition to visitation, arising out of the grandmother’s efforts to obtain custody. For example, he testified that he had “concerns” about visitation because there was “an issue of trust. She broke that trust by pushing me as a parent . . . claiming my children . . . .” He also testified that he objected to overnight visitation because “my mother-in-law has claimed to the court . . . that practically she raise[d] the children . . . . And as a father, [to] just sit back and watch and go, ‘Okay, have it,’ is not something I can do. Those statements ha[ve] consequences.”
The father paid a friend to babysit the children when he was at work. He refused to let the grandmother act as their babysitter, because he no longer trusted her since she had tried to obtain custody of his children.
Regarding the visitation schedule, the father objected to the Wednesday evening visit because it prevented him from “study[ing]” with the children. He objected to any overnight visitation because he believed it would expose the children to the uncle. He also objected to daily phone calls because they interrupted whatever he and the children were doing and because he had to stay home to receive them.
The father wanted the trial court to deny visitation entirely. If it did order visitation, however, he wanted visitation limited to eight hours every other Saturday, plus one week during summer vacation (during the day only; i.e., no sleepovers), plus eight hours on the grandmother’s birthday; he wanted phone calls limited to two per week.
The Court discusses Family Code section 3102, subdivision (a) (section 3102), that provides: “If either parent of an unemancipated minor child is deceased, the . . . 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.” The court then discussed when Section 3102 will be enforced, and when it will not be enforced on Constitutional grounds. It summarizes: “A custodial parent’s decisions regarding visitation are entitled to presumptive validity and must be accorded ‘special weight,’ but they are not immune from judicial review.”
Here father's resistance to visitation for the grandmother was not in good faith. Instead, he was withholding visitation in retaliation for the grandmother acting against him, and because he felt that she had been disrespectful to him. "[F]ather’s objections to visitation did not arise out of a genuine concern for the best interest of the children. Thus, the constitutionally established presumption that he was acting in the best interest of the children was overcome. This not only allowed but affirmatively required the trial court to determine what visitation schedule was in the best interest of the children."
Please click here to read the entire Hoag opinion.
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