Nothing Demonstrated That The Legislature Found That Fees Should Be Awarded In Grandparent Visitation Cases.
Grandparents filing petitions for visitation of grandchildren under Family Code section 3104 can sigh with relief based on the appellate court’s opinion in Timothy S. v. Sarah H., Case No. D087153 (4th Dist., Div. 1) (published).
There, grandfather—who had custody along with his wife of two grandchildren whose custody was regained later by wife (having the children in an unmarried relationship with grandfather’s son)—brought a section 3104 petition for visitation rights. Wife opposed the petition, with the trial court entering an interim order allowing grandfather one phone call per month with the children and set a trial date on a long-term order. Wife filed a request for $17,193 in attorney’s fees to cover petition opposition costs, alleging several statutory bases for fees. The trial court denied the request based on a lack of statutory authority to award fees. Wife appealed, narrowing her argument to two bases.
The 4/1 DCA affirmed. The first basis was Family Code section 7605(a) of the Uniform Parentage Act (UPA). The appellate court found that section 3104 [a grandparent visitation section] was separate and not part of the UPA, so that this was not a fee entitlement basis. The second basis was that section 7605(a) applied based on an earlier juvenile dependency order which mother characterized as “UPA judgments,” an argument dispatched because juvenile delinquency and family matters serve much different purposes such that the UPA did not apply.