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Stuard v. Stuard Summary


Opinion published on February 5, 2016


Factual Background


Husband and Wife had a child in 2004. Husband’s parents (paternal grandparents) were present for the birth.  Paternal grandfather became Child’s primary caregiver the following year.  Husband and Wife separated in 2008.  Following that time, the paternal grandparents saw Child even more.  In 2009, Husband moved in with the paternal grandparents which allowed them even more time with Child.  Eventually, Husband’s relationship with his parents soured.  Husband moved out of his parents’ home and told his father he would never see Child.  The grandparents then coordinated with Wife to see the Child.  That worked for a time, but then things got complicated  and the grandparents could not see Child.  Grandparents file a petition for grandparent visitation. 


Trial Court’s Decision


The trial court granted the petition for grandparent visitation.  The case was “tragic” and driven by Husband’s bitterness from having been asked to leave the paternal grandparents’ residence.  There was no evidence of culpable misconduct of any relevant kind on the part of either grandparent.  Clear and convincing evidence demonstrated there was a bond between Child and the paternal grandparents.  Visitation was in the Child’s best interest over the parents’ right to exercise their parental authority.  An Order for visitation resulted.  Husband appealed. 


Decision on Appeal


Husband argued in the court of appeal the trial court’s order was (1) contrary the grandparent visitation statute discriminated between divorced and married parents.  (2) Husband did not receive equal protection as he would not be subjected to the Order if the parents were still married. And (3), among other arguments, the Order abridged his fundamental right to parent in absence of a finding either he or his ex-wife were unfit


As to his equal protection arguments, Husband failed to preserve the issue in the court below and even if he did, he did not provide a cogent analysis.  As to substantive due process, the court of appeal concluded the grandparent visitation statute protected the state's interest in continuing the grandparent Child relationship and was in the child’s best interests. Finally, as to parental unfitness both the US and California Supreme Courts have held the right to parent is not absolute without a finding of parental unfitness.  The court of appeal affirmed.




While not discussed in Stuard specifically it is worth repeating,


“[F]airness is at the heart of a waiver [forfeiture] claim. Appellate courts are loath to reverse a judgment on grounds that the opposing party did not have an opportunity to argue and the trial court did not have an opportunity to consider.  [Citation.] In our adversarial system, each party has the obligation to raise any issue or infirmity that might subject the ensuing judgment to attack.  [Citation.] Bait and switch on appeal not only subjects the parties to avoidable expense, but also wreaks havoc on a judicial system too burdened to retry cases on theories that could have been raised earlier.”  (JRS Prod., Inc. v. Matsushita Elec. Corp. of Am. (2004) 115 Cal.App. 4th 168, 178, see also Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 [“An appellate court is not required to examine undeveloped claims, nor to make arguments for parties.”].)



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