For those who have grandchildren, there’s an important case to be aware of that affects custody and visitation involving grandparents.  In the case of Hoag V. Diedjomahor (2011 Cal App Lexis 1307), the California appellate court ruled that a trial court property allowed visitation of two children by their maternal grandmother under Family Code §3102 over their father’s objection, when it was determined that visitation was in the children’s best interest.

The facts involved in Diedjomahor were these:  After a couple’s 2005 marriage, they initially lived with the Wife’s mother (Grandmother in this case).  The couple separated in 2007, with both Wife and child staying with Grandmother.  In 2008, during a brief reconciliation, all three (3) moved in with Father.  A second child was born.  Wife petitioned for divorce in February of 2009, then died one month later.

Grandmother petitioned for guardianship of the children in May of 2009, alleging that Father was unfit as a parent, but the local child protective services agency found no cause for concern.  In the guardianship proceeding, the court ordered the parties to agree to a visitation schedule, but initially the father was uncooperative, and the court imposed a visitation schedule in June 2009.

In October of 2009, Grandmother filed a separate petition for visitation under Family Code §3102, and two months later the guardianship matter was dismissed.  In January 2010, the visitation case went to mediation, and a trial court adopted the mediator’s recommended visitation schedule as its temporary order.  Trial was in March of 2010, wherein father conceded that the children loved their Grandmother, and he said that he would allow visitation voluntarily, while also expressing some opposition to visitation arising from her efforts to obtain custody.

The trial court granted the visitation petition and ordered a continuation of the temporary visitation schedule, with minor adjustments.  The court acknowledged that §3102 had been found “unconstitutional when applied to a surviving parent who is neither unfit nor opposed to occasional visitation,” and that there was “overwhelming evidence” that the father was a fit parent.  However, it found that the father’s offers of reasonable visitation to the Grandmother were “feigned at best without any substance,” and that visitation with Grandmother would be in the children’s best interest.  Father then appealed, with the court of appeal affirming the judgment, holding that the trial court properly found that visitation by Grandmother would be in the children’s best interest.