Fenn

Pursuant to Family Code section 3102, 1 plaintiffs H. Sterling Fenn and Jan Fenn (grandparents) petitioned for a court order allowing them visitation with their grandchildren, Andrew and Benjamin, following the death of their daughter, Kathryn Sherriff. (All further section references are to the Family Code unless otherwise noted.) The children’s father, defendant Robert Sherriff (father), opposed the petition and moved for summary judgment on the ground he and his new wife, who had adopted the children, both objected to court-ordered visitation. Among other things, father argued section 3102 “is unconstitutional as applied if it is construed to provide grandparent visitation over the objection of both parents.” The trial court granted summary judgment on the ground grandparents had failed to allege father was an unfit parent and, in any event, had failed to raise a triable issue of fact as to father’s fitness as a parent.

We conclude section 3102 is constitutional even though it may allow for court-ordered grandparent visitation over the objection of two fit parents. Although the fundamental right of parents to make decisions regarding the *1471 care, custody, and…

I concur in the majority’s statutory analysis undertaken in part II.A. of the majority opinion.

With respect to the question whether father has shown that Family Code section 3102 cannot constitutionally be applied to him, I agree he has not, for the following reasons:

Father can defeat the grandparents’ claims to visitation by showing (1) he is a fit parent and (2) he is willing to provide meaningful visitation to the grandparents. (Troxel v. Granville (2000) 530 U.S. 57, 65-72 [ 120 S.Ct. 2054, 2059-2064 , 147 L.Ed.2d 49 ]; Kyle O. v. Donald R. (2000) 85 Cal.App.4th 848, 861 [ 102 Cal.Rptr.2d 476 ].) In this case, father showed (1) but not (2). By failing to identify evidence of visitation in his separate statement in the trial court, and by failing to ask this court to exercise its discretion to consider such evidence in our de novo review of the record, father has failed to put the question of visitation properly at issue, as stated *1495 in the majority opinion. At oral argument, counsel for the father admitted the question of visitation was not litigated in the summary judgment proceeding. The summary judgment must be reversed on that basis.

Respondent’s petition for…

Pursuant to Family Code section 3102, [1] plaintiffs H. Sterling Fenn and Jan Fenn (grandparents) petitioned for a court order allowing them visitation with their grandchildren, Andrew and Benjamin, following the death of their daughter, Kathryn Sherriff. (All further section references are to the Family Code unless otherwise noted.) The children's father, defendant Robert Sherriff (father), opposed the petition and moved for summary judgment on the ground he and his new wife, who had adopted the children, both objected to court-ordered visitation. Among other things, father argued section 3102 "is unconstitutional as applied if it is construed to provide grandparent visitation over the objection of both parents." The trial court granted summary judgment on the ground grandparents had failed to allege father was an unfit parent and, in any event, had failed to raise a triable issue of fact as to father's fitness as a parent.

We conclude section 3102 is constitutional even though it may allow for court-ordered grandparent visitation over the objection of two fit parents. Although the fundamental right of parents to make decisions regarding the care, custody, and control…