In Re Robert D.

I respectfully dissent.

My brethren see this case factually as involving “less than a congenial relationship” between the mother and maternal grandparent. In reality, the facts show both a bitter and prolonged legal and interfamilial battle over custody and visitation with the now five-year-old Robert. These are the uncontested facts underlying the partial list of parental complaints recited by the majority (majority opn., ante, p. 394):

On September 18, 1978, Lisa was granted care, custody and control of Robert in a judgment for dissolution of her previous marriage entered in the State of Illinois. Before that date Lisa had left Robert in the grandparents’ temporary care. Following her remarriage on May 5, 1980, Lisa sought the return of Robert but the grandparents refused and Lisa filed a petition for writ in this court. To counter the mother’s legal action, the grandparents filed a petition for adoption and a petition for freedom from parental custody and control (Civ. Code, § 232), alleging Robert had been abandoned as defined by Civil Code section 232. Lisa opposed the grandparents’ petitions. Thereafter on August 13, 1980, Lisa and the grandparents, through counsel, orally…

We confront here the issue of the right of grandparent visitation of a child where the parents and maternal grandparents have less than a congenial relationship. We conclude that in spite of the continuing internecine conflict substantial evidence supports the court’s order permitting grandparent visitation under Civil Code section 4601.

Factual and Procedural Background

Plaintiff Lisa D. is the natural mother and Thomas D. is the adoptive father of six-year-old Robert. The D.s were married on May 5, 1980. The defendants Carol F. and Raymond F. are the maternal grandparents of Robert (grandparents). On September 18, 1978, Lisa was granted care, custody and control of Robert in an Illinois judgment of dissolution. Before that date she had left Robert in the temporary care of her parents. After her marriage *394 to Thomas, Lisa sought the return of Robert. When her parents refused, Lisa petitioned this court for a writ which was set for hearing with a return date of July 15, 1980. Pending that hearing the grandparents filed a petition for adoption and a petition for freedom from parental custody and control alleging the minor had been abandoned (§ 232). Lisa opposed…

Daniel P. Larkin and Sandra Joan Morris for Objectors and Respondents.

OPINION

WIENER, J.

We confront here the issue of the right of grandparent visitation of a child where the parents and maternal grandparents have less than a congenial relationship. We conclude that in spite of the continuing internecine conflict substantial evidence supports the court's order permitting grandparent visitation under Civil Code section 4601. [1]

Plaintiff Lisa D. is the natural mother and Thomas D. is the adoptive father of six-year-old Robert. The D.s were married on May 5, 1980. The defendants Carol F. and Raymond F. are the maternal grandparents of Robert (grandparents). On September 18, 1978, Lisa was granted care, custody and control of Robert in an Illinois judgment of dissolution. Before that date she had left Robert in the temporary care of her parents. After her marriage to Thomas, Lisa sought the return of Robert. When her parents refused, Lisa petitioned this court for a writ which was set for hearing with a return date of July 15, 1980. Pending that hearing the grandparents filed a petition for adoption and a petition for freedom from parental custody and control alleging the…