Ed H. v. Ashley C.

Filed 8/24/17
CERTIFIED FOR PUBLICATION

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

ED H. et al., D070346

Appellants,

v. (Super. Ct. No. ED91396)

ASHLEY C.,

Respondent.

APPEAL from an order of the Superior Court of San Diego County, Robert O.

Amador, Judge. Affirmed.

Law Office of Patrick McCrary and Patrick L. McCrary for Appellants.

Bruce W. Cozart for Respondent.

Ed and Yvonne H., paternal great-grandparents, appeal from an order denying

their request for joinder and petition to seek visitation with their great-grandchildren. Ed

and Yvonne's primary contention on appeal is that the court erred in finding they lacked

standing to join as parties seeking visitation. Specifically, they argue the court erred by

determining that Family Code1 sections 3103 and 3104, which allow a court to grant

1 Further statutory references are to the Family Code.
visitation rights to grandparents if certain conditions are met, do not permit great-

grandparent visitation. Alternatively, Ed and Yvonne contend the court erred by not

considering that their grandson, the father of the great-grandchildren, consented to and

joined in their request for visitation, and by not considering whether they had standing as

psychological or de facto parents. We conclude that the Legislature did not intend

section 3104 of the grandparent visitation statutes to authorize great-grandparents to

petition for visitation, and thus the court did not err by concluding Ed and Yvonne lacked

legal standing to seek visitation. Accordingly, we affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

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 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

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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 sections

3100, 3102, 3103, and 3104. 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. At the same

time, Ed and Yvonne obtained an order shortening time to seek mandatory joinder as

indispensable parties.

Ashley opposed the motion and the request for joinder. She argued her ongoing

contact with Ed and Yvonne was hindered once Zachary moved into Ed and Yvonne's

home because of the restraining order against Zachary. However, she asserted she had

not deterred Ed and Yvonne from contacting the great-grandchildren, and except for one

instance, they had not attempted to visit them since April 2015. She argued that an order

joining Ed and Yvonne would be detrimental to the great-grandchildren's welfare because

they 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

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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.

In reply, Ed and Yvonne argued they had standing to seek visitation under

California law providing for nonparent visitation. They additionally contended the court

had discretion under section 3100 to grant visitation to nonparents who have an interest in

the child's welfare; they had standing to seek visitation under California Rules of Court,

rule 5.24(c)(1),(2) and (e)(1)(A),(B) given Zachary's consent to their visitation request;

and they could seek visitation as de facto parents.

In March 2016, the court heard Ed and Yvonne's requests for joinder and

visitation. During the hearing, the court observed that "[j]oinder is statutory" and while it

had exhaustively reviewed case authority, it found no authority for joinder of great-

grandparents. The court further noted that although there are grandparent, stepparent,

and sibling joinders, "[t]here are not, by statute, great-grandparent joinders, and once an

objection is lodged, the court cannot join because there is no statutory right to join."

After hearing argument, the court denied Ed and Yvonne's joinder motion: "The court

finds that this is a statutory scheme, and the great-grandparents do not have standing and

will not be joined." Its written order provides: "The Court summarily denies the request

of proposed Claimants, Ed and Yvonne [H.], to join as parties to this case for grandparent

visitation based upon lack of subject matter jurisdiction because of lack of standing by

the great-grandparents."

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 This appeal followed.

DISCUSSION

I. Standards of Review

We generally review custody and visitation orders for abuse of discretion.

(Montenegro v. Diaz (2001) 26 Cal.4th 249, 255; In re Marriage of Burgess (1996) 13

Cal.4th 25, 32.) "Under this test, we must uphold the trial court 'ruling if it is correct on

any basis, regardless of whether such basis was actually invoked.' " (Diaz, at p. 255.)

Generally, reversal is only warranted "if there is no reasonable basis upon which the trial

court could conclude that its decision advanced the best interests of the child." (In re

Marriage of Melville (2004) 122 Cal.App.4th 601, 610; Burgess, at p. 32.) " ' "Broad

deference must be shown to the trial judge. The reviewing court should interfere only

' "if [it] find[s] that under all the evidence, viewed most favorably in support of the trial

court's action, no judge could reasonably have made the order that he did." . . . ' " ' "

(Rich v. Thatcher (2011) 200 Cal.App.4th 1176, 1182.)

However, "[m]atters presenting pure questions of law, not involving resolution of

disputed facts, are subject to the appellate court's independent review." (Suarez v. City of

Corona (2014) 229 Cal.App.4th 325, 332.) Questions of statutory interpretation are also

reviewed under an independent standard of review. (In re Marriage of Huntley (2017) 10

Cal.App.5th 1053, 1058.)

II. The Court Properly Ruled Ed and Yvonne Lack Standing to Seek Visitation

Ed and Yvonne contend the court erred when it summarily ruled they lacked

standing to seek visitation. They argue the court did not analyze or consider the common

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meaning, origin, or legislative intent regarding the term "grandparent," which is

undefined in the Family Code or other codes. According to Ed and Yvonne, common

dictionary usage demonstrates that a great-grandparent is equivalent to a grandparent: the

word "great" in "great-grandparent" is merely an adjective describing a type of

grandparent, and thus great-grandparents encompass grandparents. As they see it, they

are "are relationally considered 'grandparents' " or are grandparents "for all practical

matters." Ed and Yvonne contend that if the Legislature intended to take great-

grandparents out of the visitation statutes it could have done so by language that

eliminated great-grandparents, or it would have placed such a limitation somewhere in

the Family Code. Finally, Ed and Yvonne argue the court should have given greater

consideration to the fact that they are the only "grandparents" in the great-grandchildren's

lives.

These arguments present a question of statutory interpretation, the primary task of

which is to "ascertain the intent of the Legislature so as to effectuate the purpose of the

law." (926 North Ardmore Avenue, LLC v. County of Los Angeles (2017) 3 Cal.5th 319,

328; Alford v. Superior Court (2003) 29 Cal.4th 1033, 1040; Acqua Vista Homeowners

Association v. MWI, Inc. (2017) 7 Cal.App.5th 1129, 1140.) To determine Legislative

intent, we look first to the language of the statute, adopting its usual and ordinary

meaning. (People v. Toney (2004) 32 Cal.4th 228, 232; In re Lana S. (2012) 207

Cal.App.4th 94, 108.) "If the plain, commonsense meaning of a statute's words is

unambiguous, the plain meaning controls." (Fitch v. Select Products Co. (2005) 36

Cal.4th 812, 818; Acqua Vista, at p. 1140 [where statutory language is unambiguous,

6
" ' "we presume the Legislature meant what it said, and the plain meaning . . .

governs" ' "].) Thus, when a statute is clear and unambiguous, we may not "insert or

delete words to accomplish a purpose that does not appear on its face or from its

legislative history." (Organization of Deputy Sheriffs v. County of San Mateo (1975) 48

Cal.App.3d 331, 340; Acqua Vista, at p. 1145 [declining to adopt an interpretation that

requires insertion of words into a statute under the guise of interpretation].) "We

consider extrinsic aids, such as legislative history, only if the statutory language is

reasonably subject to multiple interpretations." (Miklosy v. Regents of University of

California (2008) 44 Cal.4th 876, 888.) Finally, we must construe the statute in context

" 'with reference to the entire scheme of law of which it is part so that the whole may be

harmonized and retain effectiveness.' " (In re Isaiah W. (2016) 1 Cal.5th 1, 13.)

A. The Grandparent Visitation Statutes

The California Supreme Court reviewed the grandparent visitation statutes in In re

Marriage of Harris (2004) 34 Cal.4th 210 (Harris): "Grandparents' rights to court-

ordered visitation with their grandchildren are purely statutory. [Citation.] Three

California statutes expressly address grandparent visitation: [S]ection 3102, which

permits visitation by a deceased parent's children, siblings, parents, and grandparents if

such visitation would be in the best interests of the child; section 3103, which permits a

court in specified proceedings involving the custody of a child to grant grandparent

visitation; and section 3104, which permits grandparents to petition for visitation if the

grandchild's parents are not married or if certain other conditions are met." (Id. at p. 219,

fns. omitted; see also Stuard v. Stuard (2016) 244 Cal.App.4th 768, 777; In re Luke H.

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(2013) 221 Cal.App.4th 1082, 1091.) "In addition, section 3100 provides that in making

an order for joint custody of a minor child, '[i]n the discretion of the court, reasonable

visitation rights may be granted to any other person having in interest in the welfare of

the child.' (§ 3100, subd. (a).)" (Harris, at p. 220, fn. 5.)

Ed and Yvonne concede they do not have standing to join as parties seeking

visitation under section 3102, the first statute mentioned in Harris, supra, 34 Cal.4th 210,

because the great-grandchildren's parents are alive. Section 3102 provides in part: "If

either parent of an unemancipated minor child is deceased, the children, siblings, parents,

and 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." (§ 3102, subd. (a).)

Rather, Ed and Yvonne suggest that sections 3103 and 3104 grant them standing

to seek visitation. Section 3103 authorizes the court "in a proceeding described in

Section 3021" to grant visitation to grandparents. Subdivision (a) of that statute provides:

"Notwithstanding any other provision of law, in a proceeding described in Section 3021,

the court may grant reasonable visitation to a grandparent of a minor child of a party to

the proceeding if the court determines that visitation by the grandparent is in the best

interest of the child."

Section 3104 provides in part: "(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

8
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." A petition under this statute "shall not be filed while the natural or

adoptive parents are married" with certain exceptions (§ 3104, subd. (b); see Stuard v.

Stuard, supra, 244 Cal.App.4th at p. 778), and section 3104 applies a rebuttable

presumption that grandparent visitation is not in the best interest of a minor child under

other circumstances, including where one parent with sole legal and physical custody

objects to such visitation. (§ 3104, subd. (f).) Unlike section 3103, which provides for

grandparent visitation during the pendency of marriage dissolution proceedings, section

3104 permits grandparent visitation under certain conditions after the court has entered a

judgment dissolving the marriage and awarding child custody. (Harris, supra, 34 Cal.4th

at p. 222.)

In Harris, a majority of the California Supreme Court decided which of these two

statutes, section 3103 or 3104, applied in circumstances where a court had granted

extensive visitation rights to paternal grandparents over the objection of the child's

mother, who had obtained a judgment of dissolution and an order granting her sole

custody years earlier. (Harris, supra, 34 Cal.4th at pp. 214, 220.) It concluded section

3104 governed because the Legislature intended section 3103 to govern grandparent

visitation only until entry of judgment dissolving the marriage and awarding custody of

the child. (Id. at p. 222.) The court reasoned "both statutes contain a rebuttable

presumption against grandparent visitation if the parents agree that such visitation should

be denied. But only section 3104 also applies a rebuttable presumption against

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grandparent visitation if the parent granted sole custody of the child objects. We

conclude that the Legislature did not include a similar provision in section 3103 because

it would not be needed during marriage dissolution proceedings before a judgment

awarding custody had been entered. There would be no need to include such a provision

in section 3103 if, as we conclude, a request for grandparent visitation is governed by

section 3104 once a judgment has been entered dissolving the marriage and awarding

sole custody of the child to one parent." (Id. at p. 223.) The court went on to uphold the

constitutionality of that section under the federal and California Constitutions. (Id. at

pp. 223-230.)

B. Section 3103 is Inapplicable to Ed and Yvonne's Request

Though our task is to decide whether the Legislature's use of the term

"grandparent" in the grandparent visitation statutes includes great-grandparents, we may

reject at the outset under Harris any claim that Ed and Yvonne have standing under

section 3103. Because Ed and Yvonne seek visitation rights after the court dissolved

Ashley and Zachary's marriage and awarded custody, they would not have standing under

section 3103 as explained in Harris, even assuming they met the definition of a

grandparent in that section. (Harris, supra, 34 Cal.4th at pp. 210, 222.)

C. Section 3104 Does Not Grant Visitation Rights to Great-Grandparents

We turn then to whether the Legislature intended that great-grandparents be

included in section 3104's grant of a grandparent's right to seek visitation. Our Supreme

Court has not yet ruled on whether great-grandparents fall within the purview of section

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3104, and we have found no other California appellate decision on the issue. It appears

to be an issue of first impression in this state.

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." (Vasquez v. State of California

(2008) 45 Cal.4th 243, 253.) Section 3104 expressly provides that a "grandparent of a

minor child" can petition the court for visitation rights. (§ 3104, subd. (a).) 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.,

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grandparents and great-grandparents of the minor child. (§ 3102, subd. (a).2) 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.

2 We observe that section 3102 further provides: "(b) In granting visitation pursuant
to this section to a person other than a grandparent of the child, the court shall consider
the amount of personal contact between the person and the child before the application
for the visitation order. [¶] (c) This section does not apply if the child has been adopted
by a person other than a stepparent or grandparent of the child. Any visitation rights
granted pursuant to this section before the adoption of the child automatically terminate if
the child is adopted by a person other than a stepparent or grandparent of the child."
(Italics added.) In 1994, the Legislature amended subdivisions (b) and (c) of section
3102 specifically to refer to the grandparent "of the child" so as to clarify that those
sections did not mean the great-grandparent as referenced in section 3102, subdivision
(a). (Assem. Com. on Judiciary, Analysis of Assem. Bill No. 3042 (1993-1994 Reg.
Sess.) as amended Apr. 4, 1994, p. 1 ["Subdivisions (b) and (c) provide special
consideration for visitation with the child, or adoption of the child, by a 'grandparent.' It
isn't clear, however, whether this refers to the grandparent of the child or the grandparent
of the deceased parent, as is the case in subdivision (a). As current law generally
provides greater visitation rights to the grandparents of a child, it appears the intent is to
refer to the child's grandparent"].)

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 Courts in other jurisdictions have strictly construed grandparent-visitation statutes

to exclude great-grandparents when not expressly included in the statute.3 (See, e.g.,

Chavers v. Hammac (Ala.Civ.App. 1990) 568 So.2d 1252, 1253; In re M.D.E.

(Colo.Ct.App. 2013) 297 P.3d 1058, 1061; Hammons v. Jenkins-Griffith (Ind.Ct.App.

2002) 764 N.E.2d 303, 305-306; Skov v. Wicker (2001) 272 Kan. 240, 249; Cole v.

Thomas (Ky.Ct.App. 1987) 735 S.W.2d 333, 334-335; Lott v. Alexander (Miss.Ct.App.

2014) 134 So.3d 369, 374; People ex rel. Antonini v. Tracey L. (N.Y.App.Div.1996) 230

A.D.2d 869.) In Cole, the court affirmed the trial court's denial of the great-

grandmother's petition seeking visitation rights with her great-grandchild under a

Kentucky statute that allows grandparents reasonable visitation given certain conditions.

(Cole v. Thomas, 735 S.W.2d at pp. 334-335.) The court found that the statute only

provided visitation between a grandparent and grandchild, reasoning that if great-

grandparents were included in the statute it "would open the door to aunts and uncles,

3 Other jurisdictions expressly provide for great-grandparent visitation in their
statutes. (E.g., Ariz. Rev. Stat. § 25-409(C)(3) ["[f]or grandparent or great-grandparent
visitation"]; Ark. Code Ann. § 9-13-103(b) ["[a] grandparent or great-grandparent may
petition a circuit court of this state for reasonable visitation rights"]; Idaho Code § 32-719
["[t]he district court may grant reasonable visitation rights to grandparents or great-
grandparents"]; Iowa Code § 600C.1(1) ["[t]he grandparent or great-grandparent of a
minor child may petition the court for grandchild or great-grandchild visitation"]; N.M.
Stat. Ann. §§ 40-9-1.1 to 40-9-4 [defining grandparent to include great-grandparent and
providing visitation rights]; N.D. Cent. Code § 14-09-05.1(1) ["[t]he grandparents and
great-grandparents of an unmarried minor child may be granted reasonable visitation
rights to the child"]; Okla. Stat. Ann. tit. 43, § 109.4(J) ["[f]or the purposes of this
section, the term 'grandparent' shall include 'great-grandparent' "]; Wis. Stat. Ann.
§ 767.43 ["upon petition by a grandparent, great-grandparent, stepparent . . . the court
may grant reasonable visitation rights to that person"].)
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cousins and great-great-grandparents." (Id. at p. 335.) The court emphasized that

although "we would not be adverse to allowing those persons 'standing in loco parentis'

or 'any person having an interest in the welfare of the child' to file petitions such as this,

we do not believe this was the intention of the legislature." (Ibid.)

Similarly, in In re M.D.E., the appellate court in Colorado noted that excluding

great-grandparents from a state statute allowing grandparent visitation with grandchildren

limits the number of people who can interfere with constitutional parental rights. (In re

M.D.E., supra, 297 P.3d 1058 at p. 1061.) The court reasoned the statute should be

strictly construed to exclude great-grandparents because "a child can typically have only

four grandparents, but could have eight great-grandparents." (Ibid.) Ed and Yvonne

acknowledge, "There may be an argument that involving too many grandparents can

cause more confusion, consternation for the children[,] and litigation among the parents

and grandparents." Although they argue that in situations of dueling family members the

statute limits visitation to the best interest of the child, we remain unconvinced that

because there are other requirements in section 3104 that limit visitation, great-

grandparents should be allowed standing under a statute that plainly excludes them.

Ed and Yvonne urge us to go beyond the plain language of the statute to consider

other extrinsic aids. In a cursory argument, they suggest that section 3105 is such an aid

to demonstrate that the Legislature places importance on maintaining continued contact

between a child and a family member who has acted in a parental role and thus "the

[L]egislature did not foreclose even non-related third parties from seeking visitation as

'de facto parents' . . . ." Section 3105 does not assist Ed and Yvonne, because it pertains

14
to visitation rights with a child's former legal guardians, a person "who has served in a

significant, judicially approved parental role." (§ 3105, subd. (a), italics added.)4

Furthermore, we consider extrinsic aids such as legislative history only if the statutory

language is reasonably subject to multiple interpretations. (City of Alhambra v. County of

Los Angeles (2012) 55 Cal.4th 707, 719; see People v. Traylor (2009) 46 Cal.4th 1205,

1212 [" 'If the language of the statute is not ambiguous, the plain meaning controls and

resort to extrinsic sources to determine the Legislature's intent is unnecessary' "].)

Section 3104 is unambiguous and not subject to multiple interpretations.

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.

4 Section 3105 provides in part: "(a) The Legislature finds and declares that a
parent's fundamental right to provide for the care, custody, companionship, and
management of his or her children, while compelling, is not absolute. Children have a
fundamental right to maintain healthy, stable relationships with a person who has served
in a significant, judicially approved parental role. [¶] (b) The court may grant
reasonable visitation rights to a person who previously served as the legal guardian of a
child, if visitation is determined to be in the best interest of the minor child."
15
D. Joinder Arguments

Ed and Yvonne contend that the court erred by not giving any weight to the fact

that Zachary, who has not had his parental rights terminated, joined in and consented to

Ed and Yvonne's request for visitation. They argue that when Zachary joined in their

request, joinder was appropriate under California Rules of Court, rule 5.24(c) (entitled

"Persons who may seek joinder"), which provides in part: "(1) The petitioner or the

respondent may apply to the court for an order joining a person as a party to the case who

has or claims custody or physical control of any of the minor children subject to the

action, or visitation rights with respect to such children . . . ." They also argue that

mandatory joinder independently applies to them under California Rules of Court, rule

5.24(e)(1), which states: "(A) The court must order that a person be joined as a party to

the proceeding if the court discovers that person has physical custody or claims custody

or visitation rights with respect to any minor child of the marriage, domestic partnership,

or to any minor child of the relationship. [¶] (B) Before ordering the joinder of a

grandparent of a minor child in the proceeding under Family Code section 3104, the court

must take the actions described in section 3104[, subdivision] (a)."

These arguments do not establish an abuse of the court's discretion. The court

addressed Ed and Yvonne's joinder arguments at the visitation hearing, ruling their

contentions failed because they had no statutory right to join as great-grandparents. The

court stated that "although there are ways to join, the only people who have a right to join

is based on the statute." It then heard their counsel's arguments on the joinder issue,

including his argument that under California Rules of Court, rule 5.24, "the court has to

16
acknowledge the fact that one of the parties—one of the parents in this case has actually

consented to the joinder . . . ." We discern no error in the court's conclusion that Ed and

Yvonne must have some statutory basis to seek visitation rights in order to be considered

for joinder. (See Harris, supra, 34 Cal.4th at p. 219 ["Grandparents' rights to court-

ordered visitation with their grandchildren are purely statutory"]; accord, Scott v.

Superior Court (2009) 171 Cal.App.4th 540, 546 [permissive or mandatory joinder not

appropriate where nonparent lacked standing to seek custody under the Family Code].)

Ed and Yvonne have not shown the court abused its discretion by concluding they cannot

be independently joined under California Rules of Court, rule 5.24(e)(1)(B) because, as

previously discussed, they have no standing to assert visitation rights under section 3104.

Without citing California authority applying section 3100 to nonparents in non-

joint-custody proceedings, Ed and Yvonne assert an application by Zachary for them to

have visitation would properly be made under section 3100, subdivision (a), providing in

part that a court in its discretion may grant "reasonable visitation rights . . . to any other

person having an interest in the welfare of the child."5 However, as Harris observed,

5 Section 3100, subdivision (a) provides: "In making an order pursuant to Chapter
4 (commencing with Section 3080), the court shall grant reasonable visitation rights to a
parent unless it is shown that the visitation would be detrimental to the best interest of the
child. In the discretion of the court, reasonable visitation rights may be granted to any
other person having an interest in the welfare of the child." (Italics added.) Section 3080
provides: "There is a presumption, affecting the burden of proof, that joint custody is in
the best interest of a minor child, subject to Section 3011, where the parents have agreed
to joint custody or so agree in open court at a hearing for the purpose of determining the
custody of the minor child." Under section 3081, "[o]n application of either parent, joint
custody may be ordered in the discretion of the court . . . ." The balance of chapter 4
concerns the court's "reasons for granting or denying the request" (§ 3082), aspects of
17
section 3100 applies only when a joint custody order is involved. (Harris, supra, 34

Cal.4th at p. 220, fn. 5.) The proceedings here do not involve an order for joint custody

or any pending custody issues; Ashley already had been granted sole legal and physical

custody of the great-grandchildren.

Moreover, in a plurality decision, the United States Supreme Court in Troxel v.

Granville (2000) 530 U.S. 57, held that a Washington state statute authorizing visitation

rights to "any person" and "at any time," if visitation is in the child's best interest, was

unconstitutional because the statute infringed on the fundamental right of parents to make

decisions concerning the care, custody and control of their children. (Id. at pp. 65-67,

72.) Thereafter, Harris concluded that under Troxel, section 3104 "does not suffer from

the [same] constitutional infirmities" as the Washington statute because the statute is

more narrow and "permits only grandparents to seek visitation and only if the parents are

not married or are separated or if other specified circumstances exist." (Harris, supra, 34

Cal.4th at p. 226.) If we were to follow Ed and Yvonne's interpretation of section 3100

as purporting to grant a right of "any other person" to petition for visitation without

limitation, it would suffer the same constitutional infirmities as the statute in Troxel, and

it would render sections 3102, 3103, and 3104, which all provide restrictions on

visitation, meaningless. In sum, section 3100 provides no basis for Ed and Yvonne's

joinder in the proceedings, or for Ed and Yvonne to assert a right to visitation.

custody (legal and physical custody, as well as physical control, home, and caretaker),
and modification or termination of joint custody orders.

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E. Standing as De Facto Parents

Ed and Yvonne argue that even if they lack standing under the Family Code to

seek visitation, the court erred by not assessing the nature and extent of their involvement

in the children's lives and considering their arguments below that they have standing as

psychological or de facto parents. They ask this court to remand the case and direct the

court to hold an evidentiary hearing to determine whether they qualify as de facto

parents.

The concept of a de facto parent was judicially created to recognize limited rights

in custody situations and dependency cases for a person who has been found by the court

to have assumed the role of a parent on a day-to-day basis, fulfilling the child's physical

and psychological needs for affection and care for a substantial period of time. (In re

B.G. (1974) 11 Cal.3d 679, 692-693 & fn. 18; In re Kieshia E. (1993) 6 Cal.4th 68, 70-

71, 75 [recognizing doctrine in cases "when parental custody would be 'detrimental' to a

child" under family laws giving next custodial preference to " 'the person or persons in

whose home the child has been living in a wholesome and stable environment' "]; Ericka

K. v. Brett D. (2008) 161 Cal.App.4th 1259, 1267 [Family Code section 3041 codified de

facto parent doctrine in child custody proceedings]; rule 5.502(10) [defining a de facto

parent in the juvenile rules of court as a person who "has been found by the court to have

assumed, on a day-to-day basis, the role of parent, fulfilling both the child's physical and

psychological needs for care and affection, and who has assumed that role for a

substantial period"].) In circumstances involving custodial litigation in family or juvenile

dependency matters, the California Supreme Court reasons that such a person should be

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permitted to intervene and protect their own interests: their participation promotes the

correct disposition "because 'such persons who have experienced close day-to-day

contact with the child' are among the custodial alternatives the court must appraise, and

their views 'deserve consideration.' " (Kieshia E., at pp. 75-76, 77.) Application of the

doctrine "ensure[s] that all legitimate views, evidence, and interests are considered" in

such proceedings involving a minor child. (Id. at p. 76; see In re Bryan D. (2011) 199

Cal.App.4th 127, 146 [status as a de facto parent allows that person to "stay involved in

the dependency process and provide information to the court"].) But the doctrine does

not disturb "the strong countervailing interests unique to the status of parent," and

such an outsider to the parent-child relationship has "[n]o interests of comparable

importance . . . ." (Kieshia E., at p. 77.)

Accordingly, de facto parent status becomes inapplicable in situations where a

court is not involved in proceedings that require assessment of and input from custodial

alternatives. The court in In re Kieshia E., emphasized that "[t]he de facto parenthood

doctrine simply recognizes that persons who have provided a child with daily parental

concern, affection, and care, over a substantial time may develop legitimate interests and

perspectives, and may also present a custodial alternative, which should not be ignored in

a juvenile dependency proceeding. The standing accorded de facto parents has no basis

independent of these concerns." (In re Kieshia E., supra, 6 Cal.4th at pp. 77-78, italics

added.)

Here, the great-grandchildren's mother Ashley has sole legal and physical custody

of the great-grandchildren, and her significant rights as a parent are undisturbed. The

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proceedings here did not present issues of the great-grandchildren's custody or

dependency requiring a consideration of custodial alternatives. This is not a

circumstance where the court was to consider whether a parent's custody would be

detrimental to the children. (Kieshia E., supra, 6 Cal.4th at p. 75.) Independent of such

concerns, there is no basis to grant standing on behalf of a nonparent meeting the criteria

for a de facto parent. Ed and Yvonne's input—even assuming they meet the standard for

de facto parents—is simply not required where the great-grandchildren's custody or

placement is not at issue. None of Ed and Yvonne's arguments convince us to extend the

de facto parenthood doctrine outside of these contexts. The fundamental case

recognizing de facto parenthood, In re B.G., supra, 11 Cal.3d 679, on which they rely,

recognized foster parents' standing to appear in juvenile court proceedings, not

grandparent visitation rights outside of dependency proceedings. (Id. at p. 693.) We

decline to consider out-of-state decisions (Episcopal Church Cases (2009) 45 Cal.4th

467, 490), and the California authorities Ed and Yvonne cite (In re Ashley P. (1998) 62

Cal.App.4th 23; In re Vincent C. (1997) 53 Cal.App.4th 1347, 1358; Christina K. v.

Superior Court (1986) 184 Cal.App.3d 1463) recognize de facto parent standing in a

different, juvenile dependency, context.6

6 We note that in In re Robin N. (1992) 7 Cal.App.4th 1140, the Court of Appeal
affirmed a juvenile court's order granting continuing visitation rights to a de facto parent
after it had dismissed dependency proceedings. (Id. at pp. 1141, 1143.) The juvenile
court's order was authorized under California Rules of Court permitting standing by
present or past custodians qualifying as de facto parents at hearings "at which the status
of the dependent child is at issue" and by Welfare and Institutions Code section 362.4,
permitting the juvenile court to issue orders for visitation after it terminates its
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 Here, the court heard and considered Ed and Yvonne's counsel's arguments

claiming de facto parent status before making its order. Given the limited application of

the doctrine as set forth above, Ed and Yvonne cannot demonstrate the court's ruling,

which implicitly rejected their claim of de facto parent standing, was an abuse of

discretion.

Finally, even assuming Ed and Yvonne could establish the sort of contact and

involvement to be considered de facto parents and the doctrine applied in these

circumstances, they cannot show that status alone would confer standing on them to seek

visitation with the great-grandchildren. The California Supreme Court and lower courts

recognize that de facto parents have only limited procedural rights, such as the right to an

attorney, the right to be present at hearings and the right to present evidence and be heard.

(In re Kieshia E., supra, 6 Cal.4th at p. 77, fn. 7; In re A.F. (2014) 227 Cal.App.4th 692,

700; In re P.L. (2005) 134 Cal.App.4th 1357, 1361.) They expressly do not have the

same rights as parents or legal guardians. (Kieshia E., at p. 77 [emphasizing that in In re

B.G., supra, 11 Cal.3d 693, fn. 21 it "expressly declined to hold that nonparents who

assume a parental role thereby become 'parents' or 'guardians,' with all the rights such a

status implies"].) Specifically, a de facto parent has no right to reunification services,

custody or visitation, or " 'to any degree of independent control over the child's destiny

whatsoever.' " (In re A.F., at p. 700, quoting Kieshia E., at p. 82; In re P.L., at p. 1361.)

Ed and Yvonne were not prejudiced by the court's ruling declining to consider the nature

jurisdiction over a minor adjudged a dependent child. Robin N. does not compel us to
extend the de facto parent doctrine outside of custody or dependency contexts.
22
and extent of their involvement in the great-grandchildren's lives, as any finding of de

facto parent status does not grant them standing to assert a right to visitation.

DISPOSITION

The order is affirmed.

O'ROURKE, J.

WE CONCUR:

HUFFMAN, Acting P. J.

DATO, J.

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