SAMPLE BRIEF TO THE STATE OF CALIFORNIA, APPELLATE DIVISION
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TABLE OF CONTENTS
TABLE OF AUTHORITIES ……………..…………
STATEMENT OF THE CASE ………………………
STATEMENT OF FACTS ………………………….
LEGAL ARGUMENT
I. THE TRIAL COURT ERRED BY FINDING
THAT CLAIMANT FAILED TO PROVE THE BEST INTEREST OF THE CHILD
A. Pre-existing Relationship ……………
B. XXXXXn's Best Interest …………………
C. Respondent's Decision …………………
CONCLUSION ………………………………………
TABLE OF AUTHORITIES
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Cases:
Lopez vs. Martinez,
85 Cal.App.4th 279 (2000) …………………………
Mercury Casualty Co. vs. Superior Court,
(1986) 179 Cal.App.3d 1027, 225 Cal.Rptr. 100 ………
In re Eric A.,
73 Cal.App.4th 1390, 87 Cal.Rptr.2d 401 (Cal .App. 4th Dist. 1999)
…
California Statutes and Evidence Rules:
California Family Code Sec. 3104(a) ………………
California Family Code Sec. 3104(a)(1) …………
California Evidence Code § 703 ……………………
STATEMENT OF THE CASE
Petitioner XXXXX M. XXXXX and Respondent XXXXX
R. XXXXX were divorced under this docket number in 2001. Respondent
was awarded sole legal and physical custody of their child, XXXXXn
XXXXX (hereinafter "XXXXXn"), now age 3.9 years, due
to petitioner's extensive history of drug abuse and string of
related arrests. The date of that Final Order is July XXXXX. [XX/XX/XX
Transcript, page 8, lines 20-22; XX/XX/XX Transcript, page 9,
line 23 to page 11, line 10.] No issues related to that Order
are raised in this appeal.
Claimant XXXXX XXXXX, the appellant herein, is
respondent's mother and XXXXXn's grandmother. This docket number
was reopened when claimant filed a petition on XXXXX, 2005, seeking
rights to visit with XXXXXn. [App1] The respondent never filed
a responsive pleading.
An evidentiary hearing was held before the Honorable
XXXXX, presiding, on XXXXX 9 and 10, 2005. It went undisputed
that XXXXXn formerly resided with claimant for considerable amounts
of time and that she served as his caretaker. Petitioner, claimant's
brother and another child of respondent's, XXXXX XXXXX-XXXXX (who
has a different mother than XXXXXn), testified in support of claimant's
petition. Only respondent testified against it.
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The court dismissed claimant's petition after
the hearing, finding that although there was, in court's words,
"considerable evidence" of a strong bond between XXXXXn
and claimant that endured for an extensive period of time, claimant
had failed to prove through expert testimony or otherwise what
the effects of respondent's decision to sever the relationship
were having upon XXXXXn. For that reason, the court concluded
that there was insufficient evidence to overcome California's
statutory presumption codified at California Family Code §
3104(f) that visitation was not in XXXXXn's best interests due
to the fact that respondent objected to it. [App10]
Claimant filed a timely Notice of Appeal on XXXXX,
2005. She filed a Notice Designating Record on Appeal (Unlimited
Civil Case) on XXXXX, 2005 and a Case Information Statement on
XXXXX, 2005. [App12, App15, App17, App18, App22]
STATEMENT OF FACTS
Respondent testified that he has two children,
XXXXXn and XXXXX XXXXX (now known as XXXXX XXXXX) (hereinafter
"XXXXX"). [XX/XX/XX Transcript, page 17, lines 12-18]
XXXXX was residing with claimant at the time of the hearing. [XX/XX/XX
Transcript, page 18, lines 2-8] The evidence presented in this
case is that claimant served in a parental capacity for extensive
periods of time to both XXXXX and XXXXXn when petitioner and respondent
were either too busy to parent the children, or could not have
been bothered with it.
Respondent's counsel conceded during opening
statements that XXXXXn had resided with claimant "for essentially
two significant periods of time, nine months prior to the divorce
being concluded in July 2002". [XX/XX/XX Transcript, page
12, lines 15-24] In that XXXXXn was only 29 months old in July
2002 (he was born on February 19, 2000), this was an admission
that XXXXXn resided with claimant for "essentially two significant
periods of time" by the time that XXXXXn was only 20 months
old. Respondent's counsel also conceded during opening statements
that XXXXXn resided with claimant for two-and-a-half continuous
months in the summer of 2004. [XX/XX/XX Transcript, page 13, lines
5-7]
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Respondent testified that XXXXXn resided with
claimant for all of April, May and June of 2004. [XX/XX/XX Transcript,
page 7, line 25 to page 8, line 4] During this time respondent
married his new wife, went on a two-week vacation to Europe and
spent the rest of the time building a new home in Washington state.
[XX/XX/XX Transcript, page 9, line 24 to page 10, line 18] He
said claimant often spoke with him on the phone during this period
about how much she and XXXXXn were enjoying one another. [XX/XX/XX
Transcript, page 9, lines 10-19] XXXXXn was peacefully returned
to respondent's custody at the end of that 2.5 month period. Respondent
deemed it a "friendly exchange" and said that XXXXXn
and claimant had a great relationship together and that claimant
"spoil[s] him". [XX/XX/XX Transcript, page 11, lines
11-12; XX/XX/XX Transcript, page 11, line 23 to page 12, line
2] Claimant also testified that it was a smooth transition. [XX/XX/XX
Transcript, page 64, lines 9-11] Respondent admitted having no
knowledge that claimant had ever put XXXXXn in harm's way. [XX/XX/XX
Transcript, page 11, line 3-22; XX/XX/XX Transcript, page 12,
line 3-7] He also admitted that claimant used to call XXXXXn regularly
before they prohibited her from doing so and that she always bought
him all the toys, clothes and food that he needed or wanted. [XX/XX/XX
Transcript, page 13, line 12 to page 14, line 26]
Q: There were many, many times from the date
of birth of your son through June 25, 2004, that your mother
cared for your son, XXXXXn; correct?
A: Numerous Times.
Q: Many times; correct?
A: Yes.
Q: And there were many times during those period
of times, that she took care of XXXXXn in your absence; correct?
A: Yes.
Q: And during those times, it was your mother
who provided clothing for your son?
A: She bought clothes, yes.
Q: And toys?
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A: She bought toys as most grandparents do.
Q: And provided food presumably?
A: Yes.
Q: [I]t was out of her pocket? She's the one
that paid for all of these expenses; correct?
A: She chose to do that. I did not ask her
to do that. Grandparents buy things for their grandchildren.
Q: Sir, I'm not casting assertions at all.
I'm just trying to confirm that it was your mother paying for
those expenses, whether they were clothing, food, toys, whatever;
correct?
A: Whatever she felt like buying for him,
she bought.
Q: As for as you're concerned, she treated
your son very well during that period of time?
A: Yes.
Q: … From the date of the birth of your
son through June 2004 as far as you're concerned, your mother
and XXXXXn had a very, very good relationship?
A: Yes.
Q: They had a very close relationship?
A: Just like any other grandparent would with
their grandchildren, the communicated. They interacted.
[XX/XX/XX Transcript, page 13, line 12 to page
14, line 26]
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Claimant testified that she had babysat XXXXXn
six days per week for one continuous year after his birth. She
babysat on those days for 11-12 hours per day. This continued
from XXXXXn's birth in February 2000 until March 2001 when respondent
moved to Washington. Respondent did not take XXXXXn to Washington
with him. XXXXXn was left with claimant on a full-time basis from
March 2001 through October or November 2001 when XXXXXn went to
live in Washington. [XX/XX/XX Transcript, page 56, line 9 to page
59, line 2] XXXXXn only stayed in Washington for 2-3 months and
then came back to live with claimant for several more months in
2002. Respondent was in Washington and petitioner was in prison
during those periods in 2002 that claimant had custody. [XX/XX/XX
Transcript, page 59, line 3 to page 60, line 15]
Claimant testified that the same went for 2003.
During 2003 she had custody of XXXXXn for intervals that endured
for approximately four months each. [XX/XX/XX Transcript, page
60, line 16 to page 61, line 2] XXXXXn was living with claimant
for a "significant" amount of time from 2001-2003. [XX/XX/XX
Transcript, page 61, lines 8-11] During these periods of time
petitioner was either in prison or did not want custody of XXXXXn
and respondent was building a house in Washington, vacationing
in Europe and the like. [XX/XX/XX Transcript, page 61, line 12
to page 62, line 19]
Claimant also had custody of XXXXXn for considerable
periods of time during the following year, during part of January
2004 and from April 2004 to July 17, 2004. [XX/XX/XX Transcript,
page 62, line 24 to page 64, line 3] Claimant provided XXXXXn
"continuous care" on a day-to-day basis whenever XXXXXn
was in California, and she described their relationship together
as being "close". [XX/XX/XX Transcript, page 64, lines
15-20] It was even claimant who potty-trained XXXXXn and taught
him how to walk. No testimony was provided to the contrary. She
testified that she never said anything derogatory to XXXXXn about
his parents. [XX/XX/XX Transcript, page 75, lines 7-14]
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Claimant's brother, George XXXXX, testified on
claimant's behalf. He testified that he visited claimant 40-50
times while XXXXXn was in her care. [XX/XX/XX Transcript, page
34, line 6 to page 35, line 3; XX/XX/XX Transcript, page 36, lines
8-10] Claimant was alone with XXXXXn during each visit. [XX/XX/XX
Transcript, page 36, lines 11-17] He described claimant's relationship
with XXXXXn as being "beautiful". [XX/XX/XX Transcript,
page 35, lines 4-6] He did not notice anything out of the ordinary.
[XX/XX/XX Transcript, page 35, lines 11-13] He testified that
his personal observations were that respondent and claimant had
a "good relationship" at the time. [XX/XX/XX Transcript,
page 36, lines 18-24]
Claimant has provided XXXXXn and respondent significant
financial assistance over the years, including a loan for $26,000.
[XX/XX/XX Transcript, page 17, lines 2-15] Claimant's bailbonds
company also employed respondent and petitioner for a significant
period when they needed a job. [XX/XX/XX Transcript, page 23,
line 19 to page 24, line 11] In addition to that, she financially
assisted petitioner, respondent and XXXXXn to purchase a home
in Orange County, California, during the course of their marriage.
[XX/XX/XX Transcript, page 17, line 26 to page 18, line 1] On
that occasion she loaned them $50,000 in cash. [XX/XX/XX Transcript,
page 18, lines 2-4] Claimant never asked that the money be repaid
to her, although respondent repaid the $26,000 loan. He never
repaid the $50,000 loan. [XX/XX/XX Transcript, page 18, lines
5-16] Respondent contended on XXXXX 9, 2005 that the only relationship
he had with his mother was that of employer-employee, but on XXXXX
10, 2005 he admitted that the before mentioned loans had nothing
to do with an employer-employee relationship. [XX/XX/XX Transcript,
page 24, lines 3-11; XX/XX/XX Transcript, page 18, lines 17-22]
Notwithstanding all of this, respondent accused
claimant of being convicted of having stabbed someone, of having
shot someone in the back and for dancing nude in public. He subsequently
admitted, however, that he had no personal knowledge of such things.
He had no knowledge of his mother having been convicted of a crime,
and admitted that he was not surprised to learn that she actually
had never been charged with a crime in her life. [XX/XX/XX Transcript,
page 12, line 16 to page 13, line 7] Claimant testified that she
had never been arrested or convicted of a crime. [XX/XX/XX Transcript,
page 55, lines 12-19; XX/XX/XX Transcript, page 87, lines 3-6]
This should speak volumes about respondent's character. As set
forth below, the court ultimately made a finding of fact that
respondent lacked credibility.
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The court should even take note of the relationship
between XXXXX and respondent. Respondent admitted that he saw
XXXXX in court on the day of the hearing and that there was no
communication between them whatsoever. XXXXX would not as much
as say hello to his father or acknowledge his presence. [XX/XX/XX
Transcript, page 18, lines 9-16] Respondent testified, verbatim,
"I barely knew my son. I didn't know him for 17 years."
[XX/XX/XX Transcript, page 19, line 23 to page 20, line 1.] Respondent
also admitted that when XXXXX's mother, the petitioner herein,
was homeless, drug addicted and living in her father's Cadillac,
claimant took custody of XXXXX and respondent was perfectly fine
with that. [XX/XX/XX Transcript, page 21, line 13 to page 22,
line 23] At some point XXXXX returned to live with respondent
when claimant could not handle him anymore. [XX/XX/XX Transcript,
page 21, lines 13-21]
XXXXX is described by his father as being an
unruly person who wears gang related clothing and abuses drugs.
[XX/XX/XX Transcript, page 5, lines 9-14] The only attempt ever
made by respondent to help XXXXX with is problems was to speak
on one occasion to a guidance counselor at XXXXX's high school.
[XX/XX/XX Transcript, page 29, line 26 to page 30, line 5] XXXXX
testified that respondent would not even return his phone call
when he left messages to wish him a happy father's day. [XX/XX/XX
Transcript, page 39, line 23 to page 40, line 5] XXXXX testified
that respondent threw him out of the house for not wearing a seat
belt in the car, having earrings and for bad behavior in general.
[XX/XX/XX Transcript, page 40, lines 6-20] In fact, when respondent
kicked him out only a couple months after receiving him back,
it was claimant who opened her door to XXXXX again and continues
to take care of him to this day. [XX/XX/XX Transcript, page 5,
lines 22 to page 6, line 19] XXXXX testified that this was the
truth. [XX/XX/XX Transcript, page 40, line 21 to page 41, line
8] XXXXX also testified that he wishes his father would have a
relationship with him. [XX/XX/XX Transcript, page 41, line 25
to page 42, line 1]
Respondent testified that the relationship between
he and claimant began to sour upon his return to Washington from
California in June 2004 when claimant called and questioned whether
he and his new wife were sedating XXXXXn with Ritalin. [XX/XX/XX
Transcript, page 20, line 3 to page 21, line 3] Respondent testified
that he talked to his wife, telephoned claimant, advised claimant
during that conversation that he and his wife were not drugging
XXXXXn and invited claimant to come to Washington to visit. [XX/XX/XX
Transcript, page 21, lines 9-21; XX/XX/XX Transcript, page 23,
line 23 to page 24, line 10] Claimant continued to call on a daily
basis after that. [XX/XX/XX Transcript, page 21, lines 22-24;
XX/XX/XX Transcript, page 22, line 23 to page 23, line 1] As stated
above, respondent also testified that it was usual for claimant
to call all the time to speak with XXXXXn.
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After that call with his mother, respondent went
on to testify that claimant spoke on the speaker phone with XXXXXn,
respondent and his new wife and that she told XXXXXn at that time,
"You don't have to listen to your parents. You can come down
here and stay with grandmother." [XX/XX/XX Transcript, page
23, lines 2-14] He said that claimant said to XXXXXn during that
conversation that XXXXXn could just come to California to live
with her and that she would buy him toys if he did so. [XX/XX/XX
Transcript, page 23, lines 15-18] Claimant denies that she ever
said something derogative to XXXXXn about his parents or respondent's
current wife. [XX/XX/XX Transcript, page 74, line 15 to page 75,
line 6]
After that call was terminated, respondent allegedly
discussed the issue with his new wife and then called claimant
and invited claimant again to come and visit, but insisted that
he and his wife were not drugging XXXXXn. Respondent testified
that claimant continued to insist that they were drugging XXXXXn
notwithstanding. [XX/XX/XX Transcript, page 23, line 26 to page
24, line 13] After that, claimant allegedly began calling respondent's
wife and "cussing" her. Respondent then changed his
telephone number. [XX/XX/XX Transcript, page 24, lines 17-24]
They last time he talked to her was July or September 2004. [XX/XX/XX
Transcript, page 24, line 25 to page 25, line 2] He also alleged
that claimant allows XXXXXn to watch television programs containing
ghosts and that she walks around the house naked. [XX/XX/XX Transcript,
page 26, lines 3-8; XX/XX/XX Transcript, page 26, line 23 to page
27, line 3] His final gripe is that claimant has a clientele of
persons who have criminal charges pending against them. [XX/XX/XX
Transcript, page 27, lines 12-16; XX/XX/XX Transcript, page 28,
lines 8-17] He admitted that he never voiced an objection to claimant
about XXXXXn allegedly being around claimant's clientele. [XX/XX/XX
Transcript, page 28, lines 20-23] Claimant testified that her
clientele never come to her home; she meets with them all at that
jail they are confined in. [XX/XX/XX Transcript, page 75, line
15 to page 76, line 9] Other than what is stated in this paragraph,
respondent said that claimant shared a loving relationship with
XXXXXn. [XX/XX/XX Transcript, page 28, line 24 to page 29, line
12]
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Claimant testified that it was true that she
called respondent to confirm whether XXXXXn was being provided
Ritalin and that, in retrospect, she should not have done that.
[XX/XX/XX Transcript, page 72, line 3-25] She admitted having
gone to respondent's home in Washington to check on XXXXXn, but
denied that she meant harm to anyone. [XX/XX/XX Transcript, page
72, line 26 to page 73, line 5] Although respondent does not want
to reconcile a relationship with claimant, claimant testified
that she would do anything to reconcile her relationship with
her son, including counseling at her own expense. [XX/XX/XX Transcript,
page 73, lines 6-14] She was also willing to pay for all traveling
and related expenses for visitation with XXXXXn. [XX/XX/XX Transcript,
page 73, lines 15-22] She was reasonable in her visitation demands
to the court, stating that she will take whatever the court finds
to be fair. [XX/XX/XX Transcript, page 73, line 73, page 74, line
14]
Respondent testified that he does not think that
it is important that XXXXXn have a relationship with claimant
"[b]ecause of her conduct, her irrational behavior, her allegations,
her accusations, her erratic behavior". [XX/XX/XX Transcript,
page 25, lines 3-9; XX/XX/XX Transcript, page 30, lines 19-22]
Notwithstanding, in another part of his testimony he said he thinks
its important that children have a relationship with their grandparents.
[XX/XX/XX Transcript, page 29, lines 13-17] Respondent has no
desire to reconcile his relationship with claimant. [XX/XX/XX
Transcript, page 25, lines 19-21] His intention is to permanently
curb claimant's contact with XXXXXn. [XX/XX/XX Transcript, page
28, lines 3-7] He claims that XXXXXn never mentioned or asked
about his grandmother. [XX/XX/XX Transcript, page 31, lines 6-26]
He has not sought any counseling concerning the adverse impact
upon XXXXXn of terminating the relationship, nor did he believe
it to be necessary. [XX/XX/XX Transcript, page 32, line 15 to
page 33, line 3]
XXXXX testified that XXXXXn frequently asked him
about claimant while XXXXX was still living with XXXXXn in Washington.
XXXXXn told XXXXX how much he missed claimant. [XX/XX/XX Transcript,
page 42, lines 10-21] Respondent attempted to show during the evidentiary
hearing that XXXXX, who lived with claimant, was a threat to XXXXXn
because XXXXX allegedly was a drug abuser. [XX/XX/XX Transcript,
page 46, lines 8-16] XXXXX denied having ever used marijuana or
cocaine or drugs of any kind. [XX/XX/XX Transcript, page 46, lines
18-24 XX/XX/XX Transcript, page 54, lines 13-14] In addition, although
respondent testified that XXXXX was a drug abuser, respondent never
testified how he knew that XXXXX was a drug abuser. Respondent did
not testify that he saw XXXXX use drugs, that XXXXX had tested positive
for a drug of any kind or that he ever found XXXXX to be in possession
of drugs. Thus, respondent's testimony in that regard was without
foundation and should be disregarded by the court during this appeal,
especially since the trial court never made a finding of fact concerning
XXXXX's credibility or whether XXXXX had ever used drugs. The trial
court also did not make a finding of fact as to whether XXXXX wore
gang related clothing or whether XXXXX listened to "unproductive"
rap music.
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The court's XXXXX, 2005 Minute Order makes a
finding that claimant and XXXXXn had an established relationship
together that was productive. The court also made a finding that
respondent lacks credibility and that he harbors a grudge against
claimant to the extent that the court called it a "cancer".
The court finds that claimant/petitioner has
had an on-going relationship with the minor child XXXXXn up
until about July 2004. Prior to that time, the grandmother was
a caregiver, babysitter, and nurturing grandparent to this child.
This relationship ruptured shortly after respondent remarried.
The rupture was due to an accusation by grandmother that the
new wife was drugging the child, and further by an unannounced
arrival by grandmother and her male friend in Seattle where
XXXXXn and his family resided. Respondent has indicated a number
of reasons why there should be no further contact, most of which
are not credible and center around grandmother's business as
a bail bonds person. It is interesting to note that her profession
did not cause him concern when he and XXXXXn resided with her
and worked for her. In the court's opinion, they type of grudge
harbored by respondent is a cancer to the spirit which will
impact respondent negatively over the course of time.
[App6 at App8]
The court also made a finding of fact that claimant succeeded
in satisfying the requirements set forth in section 3104 of the
California Family Code that there was an established relationship
between she and XXXXXn. "There was considerable evidence
as to the prior relationship of the petitioner/claimant to XXXXXn
and the court finds the predicate relationship contemplated in
Family Code section 3104 at least to the extent that there was
a prior existing relationship." [App6 at App8]
On the record at the conclusion of the hearing,
the court made explicit findings of fact that the respondent is
harboring a grudge against claimant which the court called "poison".
[XX/XX/XX Transcript, page 101, lines 19-25] The court also made
findings of fact that the claimant "is a nice grandmother
who has had a relationship with this child for a considerable
period of time", that she has "nothing but the best"
at heart for XXXXXn and that XXXXXn resided with claimant on a
"frequent basis" prior to July 2004. [XX/XX/XX Transcript,
page 102, line 23 to page 103, line 16]
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Notwithstanding, the trial court dismissed claimant's
petition for the following reasons which were verbally announced
at the end of the hearing.
I have heard really nothing about XXXXXn, other
than there's a relationship with grandmother, and as I said
before, I think that it's important or desirable that this child
have an ongoing relationship with all of his relatives, but
then, that's not my decision.
And so I look at it and I think, well, in terms
of XXXXXn, in terms where he's coming from, there really is
no evidence one way or the other about him. There's no 730 evaluation,
there's no mental health profession, no nobody, who has really
gotten to him and see where he's at in all of this or who has
opined one way or the other about it. And I think I'm entitled
to take that absence into account in arriving at a decision.
And what I have is an argument, essentially
an argument, that says that the presumption is rebutted because
there was a longstanding visitation arrangement; there was bonding
between XXXXXn and his grandmother, and therefore, there decision
that dad maybe cut grandmother off is inappropriate.
Notwithstanding the fact that I assume that
since dad now is remarried and his new wife was being accused
of drugging the kid, and grandmother came in out of clear blue
with somebody to, I guess, tell dad what to do, and it's obvious
to me that dad had enough of his mother telling him what to
do, which is the genesis of all of this, which I think is most
unfortunate.
But nonetheless, that's his decision, and anything
I have heard, I have not heard anything other than anecdotal
things about XXXXXn, both from grandmother and dad who says,
well, he never asks, and it hasn't impacted him at all, which
I don't necessarily believe anymore than I can infer that the
child is being emotionally scarred by this separation, because
there isn't any evidence of it.
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So the question is, if I deny this, can I find
with a straight face, this being the petition, that it's detrimental
to XXXXXn; or to put it another way, are there sufficient facts
in evidence before me as it sits right now, to say the presumption
in favor of dad; in other words, the rebuttable presumption
that dad has made a decision which in the child's best interest,
whether or not that rebuttable presumption now has been rebutted.
My answer is, no, I haven't heard anything that leads me to
conclude that it is.
[XX/XX/XX Transcript, page 105,
line 5 to page 106, line 24]
LEGAL ARGUMENT
I. THE TRIAL COURT ERRED BY FINDING
THAT CLAIMANT FAILED TO PROVE THE BEST INTEREST OF THE CHILD
A court must make two essential considerations
when adjudicating a petition for grandparent visitation.
(a) On petition to the court by a grandparent
of a minor child, the court may grant reasonable visitation
rights to the grandparent if the court does both of the following:
(1) Finds that there is a preexisting relationship
between the grandparent and the grandchild that has engendered
a bond such that visitation is in the best interest of the child.
(2) Balances the interest of the child in having
visitation with the grandparent against the right of the parents
to exercise their parental authority.
California Family Code Sec. 3104(a)
et seq.
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"The result [of this test] is a balance between the child's
interest in the grandparental relationship and the right of the
parents to rear their own child as they see fit." Lopez vs.
Martinez, 85 Cal.App.4th 279, 288 (2000).
A. Pre-existing Relationship.
The trial court made a finding of fact that claimant
had satisfied California Family Code Sec. 3104(a)(1) insofar as
proving an established preexisting relationship was concerned.
"There was considerable evidence as to the prior relationship
of the petitioner/claimant to XXXXXn and the court finds the predicate
relationship contemplated in Family Code section 3104 at least
to the extent that there was a prior existing relationship."
[App6 at App8] Respondent has not filed a cross-appeal contending
that this finding was in err.
That was a correct ruling. The evidence presented
was that claimant had babysat XXXXXn six days per week for one
continuous year after his birth. She babysat on those days for
11-12 hours per day. This continued from XXXXXn's birth in February
2000 until March 2001 when respondent moved to Washington. Respondent
did not take XXXXXn to Washington with him. XXXXXn was left with
claimant on a full-time basis from March 2001 through October
or November 2001 when XXXXXn went to live in Washington. [XX/XX/XX
Transcript, page 56, line 9 to page 59, line 2]
XXXXXn only stayed in Washington for 2-3 months
and them came back to live with claimant for several more months
in 2002. Respondent was in Washington and petitioner was in prison
during those periods in 2002 that claimant had custody. [XX/XX/XX
Transcript, page 59, line 3 to page 60, line 15] Claimant testified
that the same went for 2003. During 2003 she had custody of XXXXXn
for intervals that endured for approximately four months each. [XX/XX/XX
Transcript, page 60, line 16 to page 61, line 2]
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XXXXXn was living with claimant for a "significant"
amount of time from 2001-2003. [XX/XX/XX Transcript, page 61,
lines 8-11] During these periods of time petitioner was either
in prison or did not want custody of XXXXXn and respondent was
building a house in Washington, vacationing in Europe and the
like. [XX/XX/XX Transcript, page 61, line 12 to page 62, line
19] Claimant also had custody of XXXXXn for considerable periods
of time during the following year, during part of January 2004
and from April to July 17, 2004. [XX/XX/XX Transcript, page 62,
line 24 to page 64, line 3] Claimant was provided XXXXXn "continuous
care" on a day-to-day basis whenever XXXXXn was in California,
and she described their relationship together as being "close".
[XX/XX/XX Transcript, page 64, lines 15-20] It was even claimant
who potty-trained XXXXXn and taught him how to walk. [XX/XX/XX
Transcript, page 75, lines 7-14]
B. XXXXXn's Best Interest.
The court erred, however, by finding that although
such an extensive preexisting relationship had been proven, the
relationship was not such that it could be conferred that interfering
with the relationship would not be in the best interest of the
child. The evidence in this case is so extensive of the close
relationship between claimant and XXXXXn that it should be assumed
that visitation would serve XXXXXn's best interest. Claimant served
as XXXXXn's parent in every way, including potty training him
and teaching him to walk. Whereas respondent was XXXXXn's custodial
parent as a matter of court order, claimant was the custodial
parental figure as a matter of fact. Babysitting 11-12 hours per
day, six days per week constitutes a 50/50 split of custody, and
having so-called "visitation sessions" that endure for
four-month interims surely makes claimant just as much of a custodian
as respondent was.
Hence, one of the questions presented by this
appeal is not whether grandparents or third-parties are entitled
to visitation orders. Rather, the question is whether a grandparent
who served as a former caretaker for a significant amount of time
confers any visitation rights to the grandparent, and whether
the exisitence of that extensive relationship is sufficient to
create a rebuttable presumption that it is in the child's best
interests that such a relationship be permitted to continue uninterrupted.
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It is true that claimant failed to provide testimony
from a child psychologist regarding XXXXXn's best interests, but
the court has basically ruled that the presumption that respondent's
opinion is in the best interest of the child cannot be rebuffed
absent expert testimony. That is too rigid of a rule. There was
no expert testimony, but there was a plethora of other evidence.
Claimant posits that the evidence presented here, even without
psychological testimony, establishes what the best interest of
the child are. It cannot be said that it serves the best interest
of the child to terminate a "longstanding" relationship
with someone who has cared for the child on a day-to-day basis
for "significant" and "frequent" periods of
time since the child's birth. Such evidence should have been sufficient
to have shifted the burden of proof back to respondent to prove
at that point that tearing XXXXXn away from that long term caregiver
would not be detrimental to his well being.
Besides the reasonable assumptions that could
have been made in this case, claimant asserts that the trial court
also failed to sua sponte Order a psychological evaluation. After
hearing all of the evidence in this case, the court made a determination
that such an evaluation was required, but failed to Order one.
There is no statute or caselaw mandating the court to have made
a decision on the petition immediately, as it did. The court had
the authority to Order a psychological evaluation mid-trial.
When it appears to the court, at any
time before or during the trial of an action, that expert evidence
is or may be required by the court or by any party to the action,
the court on its own motion or on motion of any party may appoint
one or more experts to investigate, to render a report as may
be ordered by the court, and to testify as an expert at the trial
of the action relative to the fact or matter as to which the expert
evidence is or may be required. The court may fix the compensation
for these services, if any, rendered by any person appointed under
this section, in addition to any service as a witness, at the
amount as seems reasonable to the court.
California Evidence Code §
703.
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It has been held that the trial court abuses its
discretion when it fails to appoint an expert when it is evidence
that one is required in the case.
Of course, the trial court is never obliged
to appoint an expert to assist it in making a factual, much
less a legal, determination under Evidence Code Section 730
unless, as that section provides, "it appears to the court
... that expert evidence is ... required." (Italics added;
see Mercury Casualty Co. vs. Superior Court (1986) 179 Cal.App.3d
1027, 1032-1033, 225 Cal.Rptr. 100 [experts appointed under
section 730 are necessary only when the court sees the need
for an assessment by a disinterested and impartial expert who
is not advocating on behalf of a party to the action].)
In re Eric A.,
73 Cal.App.4th 1390, 1394,
87 Cal.Rptr.2d 401, 404
(Cal .App. 4th Dist. 1999).
Claimant respectfully requests that this matter
be remanded to the trial court for a psychological evaluation
of XXXXXn at claimant's expense to determine whether severing
the relationship between she and claimant would contravene his
best interests.
C. Respondent's Decision.
Should this court grant claimant's request for
a remand in this case for a psychological evaluation at her expense,
and should that evaluation conclude that stopping visitation would
not be in XXXXXn's best interest, the only remaining question
would be whether the trial court erred in holding that there was
insufficient evidence to justify over-riding respondent's demand
that there be no such visitation. Respondent's decision in this
regard should have been disregarded for a number of reasons.
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The trial court made findings of fact that respondent
harbored a grudge against claimant that the court deemed "poison"
and a "cancer". The court also made a finding that respondent
lacked credibility and that respondent was making up stories about
claimant pertaining to nude public dancing, drug abuse and criminal
convictions for shootings and stabbings. The presumption set forth
in Section 3104(f) is that the parent's decision is in the best
interest of the child, but here the evidence was that the parent
was acting out of spite without any consideration to the past
relationship between claimant and XXXXXn. The evidence was that
the parent was acting out of spite without any regard to the child's
wants or needs.
The court should frown upon such malicious actions
being taken by a parent out of spite or a grudge. There is no
reason to interfere with such a loving grandparent-grandchild
relationship as the one presented in this case.
CONCLUSION
Claimant respectfully requests that this matter
be remanded to the trial court for a psychological evaluation
of XXXXXn at claimant's expense pursuant to California Evidence
Code § 703 to determine whether severing the pre-existing
relationship between he and claimant would contravene his best
interests.
Respectfully Submitted,
_____________________________
XXXXX XXXXX
XXXXXXXXXXXXXXXXXXXXX
Dated:
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