Grandparent Guardianships Get Legal Boost

In a decision that could make it more difficult for parents to regain custody of children being raised by grandparents, a state appeals court has ruled that parents must justify disrupting the children’s lives by ending such arrangements.

The ruling, made public Thursday by the 4th District Court of Appeal in Santa Ana, is the first to devise an “applicable test” to determine custody in cases involving grandparent guardianships in California.

“Children are not dogwood trees, to be uprooted, replanted, then replanted again for expediency’s sake,” Presiding Justice David G. Sills wrote in the decision. “The idea that children may be temporarily deposited in the hands of some bailee to be recovered at will--like an old lamp that one doesn’t know what to do with, so one puts it in storage--is contradicted by the cases and common experience.”

In recent years, the overburdened family law system increasingly has relied on guardians, especially grandparents, rather than foster care to bring up children in cases in which the natural parents are unfit to do so.

The ruling “guarantees a sense of stability for the kids,” said Alan Watahara, president of the California Children’s Lobby in Sacramento. “I don’t think the ruling was surprising, but it does begin to discuss and identify the problems” in custody law.

About 750,000 California grandparents and about 4 million grandparents nationwide are caring for their grandchildren, according to the U.S. Census and other studies. Between 1990 and 1997, the number of children living with grandparents increased by 23% nationally, Census figures show.

As a result, the number of custody cases involving grandparents has risen dramatically. Among them was the court battle involving O.J. Simpson, who won custody of his children from their maternal grandparents in 1997 after being acquitted of murdering their mother, Nicole Brown Simpson, and her friend, Ronald Goldman.

While such cases have provided some guidance, the rulings have not been consistent, Sills wrote.

Michael Naughton, the attorney who represented the grandmother in the guardianship appeal, said Thursday, “This is a clarification of guardianship laws that heretofore were just all over the place.”

In this week’s ruling, he said, “the justices leaned in favor of grandparents’ rights and the best interest of the children, rather than the constitutional rights of the parents.”

The case stemmed from a 1993 Orange County Superior Court case involving Don H., a Tustin house painter whose last name was not made public in appeal court documents because he is now an Alcoholics Anonymous member with more than three years of sobriety.

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The man’s alcoholism and his wife’s “severe mental problems,” according to court documents, left them unable to care for their two young daughters. Ongoing family conflict resulted in a 1992 court appointment of the children’s maternal grandmother as guardian of the girls. The couple’s oldest child, a son, was already living with the grandmother in Irvine. To protect the family’s privacy, the full names of the children and their grandmother were not revealed in court documents.

“It is undisputed that [the grandmother] has done an outstanding job with the children, . . . and the children have an emotional, psychological bonding and nurturing relationship with her,” the ruling stated.

But Don H. petitioned the court for custody of the two younger children. In a decision that was “sicklied over with the pale cast of thought,” Sills wrote, quoting Hamlet’s soliloquy, Superior Court Judge Thomas Schulte ruled that, based partly on the father’s sobriety, he could have custody of the children.

Schulte stayed his own ruling, however, pending an appeal by the grandmother. The state appellate panel on Tuesday overturned the decision.

“A child experiences the whole of a human being as parent, not just some disembodied part,” Justice Sills wrote. “It is good, for example, that Don H. has overcome his drinking problem.”

But that alone does not establish that he is a fit parent, the judge wrote: “There are plenty of bad parents who never touch alcohol.”

Furthermore, the three-judge appeals panel pointed out that Don had “no psychological relationship with the children,” according to the ruling, adding that he had made no arrangements for their schooling, day care or medical needs.

“He had not bothered with any of the logistical details of parenthood,” Sills wrote. “He had not developed a strong bond with his children that would overcome the upheaval of terminating the formal care of Patricia and entrusting it to him. Indeed, he was a virtual stranger to the children.” Don H.’s attorney, Donna Bader, expressed disappointment for her client but said she was glad the court gave such weight to the best interests of the children. Her client could not be reached for comment.