Your great-grandparent isn't your grandparent (except under highly unusual circumstances)

|The Volokh Conspiracy |

Many states' laws allow grandparents the rights to some visitation with their grandchildren, even over the objection of the parents (or perhaps the one remaining parent). Whether and when that is constitutional is controversial, but courts have upheld this in some situations, especially when the grandparents had helped raise the child in the past.

But the statutes are generally limited just to grandparents, and don't include others, such as great-grandparents. Last week's decision in Ed H. v. Ashley C. reaffirms that this is exactly what the statutes mean (and cites other cases from other states that hold the same). First, the backstory:

Ashley C. and Zachary H., whose marriage was dissolved in 2014, have two children together: H.H. and J.H. (together, the great-grandchildren). Ashley and H.H. lived with Ed and Yvonne [Zachary H.'s grandparents] for approximately three years, from about August 2009 to July 2013. Once J.H. was born in 2010, he also lived with Ed and Yvonne until July 2013. During this time, Ed and Yvonne helped care for the great-grandchildren. After Ashley and the great-grandchildren moved out of Ed and Yvonne's house, Ed and Yvonne would periodically visit them.

In September 2013, Ashley petitioned for dissolution of her and Zachary's marriage, and their marital status was terminated in March 2014. The dissolution judgment awarded Ashley sole legal and physical custody of the great-grandchildren and awarded Zachary reasonable visitation.

In March 2015, Ashley requested domestic violence restraining orders against Zachary in response to an incident where Zachary threatened her. Later that month, the court awarded Ashley a restraining order against Zachary including a child custody and visitation order granting Ashley legal and physical custody of the great-grandchildren and terminating Zachary's visitation. Ed and Yvonne's visits with the great-grandchildren ended about this time.

In December 2015, Ed and Yvonne filed a request for an order modifying visitation and a petition for independent great-grandparent visitation pursuant to [various California statutes]. … They asserted that despite numerous attempts to contact Ashley, she had ignored their calls and messages, and that as a consequence, they had not contacted their great-grandchildren since March 2015. Ed and Yvonne argued that because of their long-standing and substantial relationship with the great-grandchildren, visitation and continued family contact was in the great-grandchildren's best interest. Zachary consented to and joined in Ed and Yvonne's visitation petition. …

Ashley opposed the motion. … She argued … [the children] associate Ed and Yvonne with Zachary, who terrifies them, and therefore visitation may cause the great-grandchildren fear and anxiety. She asserted that Ed and Yvonne minimized Zachary's drug and behavioral problems, and thus she could not trust them to protect the great-grandchildren from him. Ashley also asserted that Ed and Yvonne lacked standing to be joined because they were not grandparents, and the court had no subject matter jurisdiction to entertain their request.

And the legal analysis, in relevant part:

[O]ur task is to decide whether the Legislature's use of the term "grandparent" in the grandparent visitation statutes includes great-grandparents. … In answering this question, our role is "simply to ascertain and declare what the statute contains, not to change its scope by reading into it language it does not contain or by reading out of it language it does. We may not rewrite the statute to conform to an assumed intention that does not appear in its language."

Section 3104 expressly provides that a "grandparent of a minor child" can petition the court for visitation rights. As Ed and Yvonne point out, neither section 3104 nor the Family Code more generally define the term grandparent, so we look to its ordinary dictionary meaning, which is "a parent's parent" (Webster's 3d New Internat. Dict. (2002) p. 988, col. 2) or "a parent of one's father or mother" (Webster's Collegiate Dict. (11th Ed. 2003) p. 544). This plain and ordinary meaning of the term grandparent would not extend to Ed and Yvonne, who are not parents but grandparents of the parent in this case.

Additionally, viewing section 3104 in context with the remaining grandparent visitation statutes makes it abundantly clear the Legislature intended the plain and ordinary meaning of "grandparent"—the parent of the minor child's parent—in section 3104 because it specifically referred to great-grandparents in other provisions of the visitation statutes. That is, section 3102, which as stated addresses the right of specified family members to seek visitation in the event either parent is deceased, permits reasonable visitation by both "parents[ ] and grandparents of the deceased parent,"—i.e., grandparents and great-grandparents of the minor child. This express reference to great-grandparents in section 3102, but not 3104, contradicts Ed and Yvonne's arguments that "the [L]egislature did not differentiate the two terms because [it] did not consider a variance in the two terms" or that "the Family Code does not differentiate the terms … as it could if the [L]egislature desired to do so."

Ed and Yvonne argue the term "great" in "great-grandparents" is merely an adjective describing a type of grandparent. Following this logic, the Legislature need only have provided for visitation by "parents" in section 3102 because grandparents are merely a type of parent. That the Legislature did not do so in section 3102 is strong evidence that it likewise did not do so in section 3104. We conclude the Legislature plainly limited visitation rights in section 3104 to the parents of the mother or father of the minor child. Courts in other jurisdictions have strictly construed grandparent-visitation statutes to exclude great-grandparents when not expressly included in the statute [citing cases from Alabama, Colorado, Indiana, Kansas, Kentucky, Mississippi, and New York. … [Footnote moved:] Other jurisdictions [citing Arizona, Arkansas, Idaho, Iowa, New Mexico, North Dakota, Oklahoma, and Wisconsin] expressly provide for great-grandparent visitation in their statutes. …

We acknowledge that aside from Ed and Yvonne, the great-grandchildren do not have other grandparent figures present in their life, but that circumstance is of no import in determining the legislative intent of section 3104. While we agree that continued contact by persons who have familial, close bonds with children can be beneficial and of great value to the children, this court cannot add words to a statute that is plain and unambiguous on its face. Therefore, we conclude that Ed and Yvonne do not have standing to seek visitation as great-grandparents under section 3104.

And, indirectly related to the possible highly unusual circumstances, though quite unrelated to the facts of this case: